Clemmons v. Flora Food US Inc.

Background

Duval Clemmons brought a proposed class action against Flora Food US Inc., formerly known as Upfield US Inc. He alleged that Flora’s Country Crock Plant Butter was misleadingly marketed as “Made With Olive Oil,” even though the product contained a blend of plant-based oils. The remaining claims arose under sections 349 and 350 of the New York General Business Law, which address deceptive business practices and false advertising.

The court had previously dismissed some claims but allowed the sections 349 and 350 claims to continue. After discovery ended, Flora moved for summary judgment. Summary judgment is a decision entered without a trial when the evidence shows that no reasonable jury could rule for the opposing party on a required element of the claim.

Clemmons testified that he bought twin packs of the product four times at BJ’s Wholesale Club between April 12 and October 13, 2021. He claimed that the products bore the words “Made With Olive Oil.” The record showed that Flora stopped producing packaging with that phrase in October 2019, began selling packaging marked “With Olive Oil” in 2020, and had never used the “Made With Olive Oil” phrase on the twin packs Clemmons purchased.

Whether Clemmons bought a product with the challenged label

For claims under sections 349 and 350, a plaintiff must prove consumer-oriented conduct that was materially misleading and caused injury. The court applied an objective test asking whether the conduct could mislead a reasonable consumer.

The court concluded that no reasonable jury could find that Clemmons purchased a product labeled “Made With Olive Oil” during the period he identified. The product’s best-before period was six or eight months. Even assuming Flora sold products with the older label through 2019, an eight-month period would have ended by August 31, 2020—before Clemmons’s first claimed purchase in April 2021. Clemmons offered no admissible evidence that BJ’s had a policy or regular practice of selling refrigerated plant-butter products far beyond their best-before dates.

The court also relied on evidence that the twin packs had never been labeled “Made With Olive Oil.” Clemmons’s testimony that the products “could have been” old items left on the shelf was speculation. His attorney’s declaration similarly speculated about BJ’s shelf practices without providing personal-knowledge evidence about the sale of these products. The court held that this evidence did not create a genuine factual dispute for trial.

The court rejected Clemmons’s alternative argument that “Made With Olive Oil” and “With Olive Oil” were effectively the same. It explained that the two phrases can communicate different messages to reasonable consumers: “Made With” may suggest that the named ingredient is exclusive or predominant, while “With” does not necessarily convey that meaning. However, the court did not decide whether the “With Olive Oil” label was misleading because that theory was not pleaded in the complaint and was raised too late, in opposition to summary judgment.

Actual injury

The court also granted summary judgment on an alternative ground: Clemmons had not shown actual injury. Under sections 349 and 350, merely buying a product that a consumer would not have bought absent alleged deception is not enough. The plaintiff must show that the misleading conduct caused a loss, such as receiving less than the full value of the product, paying a price premium, or suffering a health-related injury.

Clemmons relied on a price-premium theory but presented no evidence comparing the product’s price with comparable products or otherwise showing that he paid more because of the alleged label. His expert, Andrea Lynn Matthews, Ph.D., was not an economist and had not performed a price-premium analysis. Her proposed methods for a possible future analysis were not sufficient after discovery had closed.

Disposition

The court concluded that no reasonable jury could find that Clemmons purchased the product with the “Made With Olive Oil” label or that he suffered actual injury from the alleged mislabeling. Judge P. Castel granted Flora’s motion for summary judgment, directed the Clerk to enter judgment for Flora, terminate the motion, and close the case.