In re ConAgra Foods, Inc.: Article III Standing Requirements Swallow Up Another Injunctive Relief Claim in Food Labeling Case

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Injunctive relief claimants in food labeling cases in federal court face a dilemma: to have standing to obtain injunctive relief under Article III and force a manufacturer to change an illegal or deceptive label, a plaintiff must allege that a “real or immediate threat” exists that he or she will be wronged again. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). But, once a consumer knows a food product is mislabeled, the consumer cannot plausibly allege that he or she will again be deceived by the same label. Arguably, because such a plaintiff will not be “fooled again,” he or she lacks standing to seek injunctive relief.

Federal courts in California have taken a number of approaches to this dilemma. See Rahman v. Mott’s LLP, 2014 U.S. Dist. Lexis 147102 *14-17 (N.D. Cal. Oct. 15, 2014). One line of cases following Henderson v. Gruma Corp., 2011 U.S. Dist. LEXIS 41077 (C.D. Cal. Apr. 11, 2011), reasons that Article III standing cannot be so narrowly construed because it would effectively bar consumers in advertising cases from obtaining injunctive relief. Lanovaz v. Twinings N. Am., Inc., 2014 U.S. Dist. LEXIS 1639 *31 (N.D. Cal. Jan. 6, 2014). Another line of cases rejects the notion that a plaintiff lacks standing because “he has learned that a label is misleading and therefore will not be fooled again.” Rather, a plaintiff lacks standing if he has not expressed an intent to purchase the product in the future. In re ConAgra Foods, Inc., 302 F.R.D. 537, 575 (C.D. Cal. 2014). Finally, some courts have held that knowledge of the allegedly unlawful or misleading label precludes standing for injunctive relief. See Rahman at *16-17.

In a new decision, In re ConAgra Foods, Inc. (“ConAgra Foods”), Judge Margaret Morrow expands upon the middle approach discussed in her prior decision by explaining what a plaintiff must demonstrate to establish a “future intent” to purchase a product. No. 11-cv-05379 (N.D. Cal. Feb. 23, 2015) (slip op. available here). In ConAgra Foods, the plaintiffs submitted declarations in support of their motion for class certification asserting that: (1) they purchased Wesson Oils in part because they were labeled “100% Natural”; (2) they were deceived by ConAgra’s “100% Natural” label because they believed that “100% Natural” meant the product did not contain genetically modified organism (GMO) ingredients; (3) they typically attempt to avoid purchasing products with GMO ingredients, but realize that it is extremely difficult to avoid GMO ingredients altogether; and (4) if ConAgra removes the “100% Natural” label, they “might consider” or “will consider” purchasing Wesson Oils in the future, depending on price and the availability of alternate products. Slip op. at 59.

These allegations are insufficient to establish Article III standing, according to the ConAgra Foods court. Equivocal language that a consumer “might” or “may” consider buying the product in the future does not establish a sufficient likelihood of future injury to establish Article III standing. Under the court’s reasoning, a plaintiff in a food labeling case must clearly state an intent to purchase the challenged product in the future in order to have standing to pursue injunctive relief. Slip op. at 63. Thus, plaintiffs in labeling cases are on notice that nothing short of a declaration that they will purchase a mislabeled product again, if the label is changed, will suffice.

ConAgra Foods may be the latest example of the elusive nature of Article III standing in food labeling cases, but it does not go far in clarifying the law. It begs the question, had the plaintiffs averred that after years of avoiding eating food products containing GMOs, they now intend to buy such a product simply because the label was changed to remove the words “100% Natural,” would that testimony be plausible? Clearly, the courts in the Ninth Circuit have a way to go before this Article III standing dilemma is resolved.

Authored By:
Robert Friedl, Senior Counsel