In a consumer fraud class action complaint against Cento Fine Foods, plaintiffs alleged misleading labeling of canned tomato products from Italy labeled “Certified San Marzano.” Plaintiffs’ claims were dismissed based upon failure to state a plausible cause of action under FRCP 12 (b)(6).

Plaintiffs asserted consumer fraud under New York General Business Law sections 349 and 350. The court found these claims were conclusory and strained, as the “reasonable consumer” would not have an expectation that a San Marzano tomato must be certified by the Consortium of the San Marzano Tomato PDO (Protected Designation of Origin.)

Plaintiffs did not allege that Cento falsely claimed the product was certified by the Consortium, and Consortium-certified seals did not appear on the product labels. Rather, plaintiffs contended the labeling and packaging created the impression of that certification. While there might be a few consumers who expect a San Marzano tomato to be certified by the Consortium, drawing upon common sense and common experience, the vast majority of reasonable consumers expect no such thing, the court ruled.

There was no breach of express warranty because the product statement that the tomatoes were certified was true and of a general nature. The unjust enrichment claim was found to be duplicative of the other failed claims. Plaintiffs’ fraud claim failed as it did not plausibly allege a false or misleading statement, let alone one with particularity. Sibrian v. Cento, 19-CV-0974 (Eastern District of NY, July 2, 2020).

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