Hunton Retail Law Resource

This past week, several consumer actions made headlines:

Hyundai and Kia Set State Attorneys General Investigations for $42.1 Million

Hyundai Motor Co. and Kia Motor Corp. have agreed to pay $42.1 million to settle claims by the Attorneys General of 33 states and the District of Columbia that the companies misrepresented mileage and fuel economy ratings for certain vehicles. Hyundai issued a statement regarding the settlement, noting that it contains no admission of any wrongdoing. The companies previously paid $100 million to settle claims that they had misrepresented emissions to the U.S. Environmental Protection Agency, and $225 million to a consumer class for overstating the fuel efficiency of their vehicles.

Federal Judge Throws Out Case Against Pfizer

A U.S. District Judge has dismissed claims against Pfizer alleging that its Advil bottles were misleading and ambiguous as to how many pills were in each bottle.

A putative class had alleged that Advil’s large bottles were not actually filled to capacity, and were in violation of the Federal Food Drug & Cosmetic Act and New York, Florida and California consumer protection laws. However, the court found that Advil’s packaging clearly disclosed the pill-counts, and thus could not possibly have misled a reasonable consumer.

In its opinion, the court noted: “The suggestion that such laws should cover [plaintiffs] failure to read an unambiguous tablet-count does not pass the proverbial laugh test... In sum, plaintiffs' claims amount to ‘non-actionable puffery,’ and are unreasonable as a matter of law.”

Woman Sues KFC for Falsely Advertising Buckets of Chicken

A consumer filed a false advertising suit alleging that KFC under-filled its buckets compared to its ads depicting overflowing fried chicken buckets. The consumer alleges that after purchasing a bucket of chicken, she found only eight pieces; she further alleges that she spoke to a KFC representative who informed her the buckets of chicken in the advertisements are overflowing so that the public can see the chicken. The lawsuit seeks $20 million in damages.

Sweet Victory for Sour Patch Kids

A federal judge in New York dismissed a consumer class action alleging that Mondelez International and Mondelez Global, LLC, falsely labeled its Sour Patch Kids Watermelon Candy. The complaint alleged that the candy is “slack-filled” and is packaged to give the appearance that each box contains more than it actually does. The court found that the claim for violation of NY’s General Business Law failed to allege that consumers paid a higher price for the candy than they would have without the misleading packaging. The court also dismissed the plaintiffs’ other claims for negligent misrepresentation, common law fraud and unjust enrichment.

Octopus False Advertising Suit Continues

A federal judge in California denied a grocer’s motion to dismiss claims that the grocer labeled, marketed and sold products as containing octopus when in reality they contained jumbo squid. The grocer moved to dismiss for lack of subject matter jurisdiction on the grounds that the plaintiff could not meet the $5 million minimum amount in controversy required by the Class Action Fairness Act of 2005 (“CAFA”). The court noted that CAFA allows the court to consider compensatory damages, punitive damages, injunctive relief and attorneys’ fees and costs in determining whether the jurisdictional amount is met. While there was evidence of the defendant’s actual sales, the court found that an assessment of compensatory damages would require additional information, including the value of both the product as represented and the actual product received. Because this information was lacking, the court could not conclude to a legal certainly that the claim was for less than the jurisdictional amount, and denied the motion to dismiss.

Vitamin Consumer Seeks Class Certification

A consumer who brought claims against vitamin maker NBTY Inc. has requested class certification. The plaintiff alleges that NBTY violated the FTC Act and the Florida Deceptive and Unfair Trade Practices Act by falsely labeling its products as “Made in USA.” Despite the claim and an American flag on the label, the plaintiff alleges that the vitamins contained foreign-sourced ingredients. The plaintiff has requested that the court delay a decision on class certification until after discovery.