Key Takeaways:

• • The central claim is that Conagra’s “100% Whole Fish” labels are false and misleading due to the undisclosed presence of STPP filler.
  • STPP allegedly allows the fish to soak up excess water weight, a practice known as “short weighting” that cheats consumers.
  • Plaintiffs argue a reasonable consumer would not assume added STPP based on the unqualified “100% Whole Fish” claim on the front label.
  • These allegations, if proven, could amount to an unlawful “bait and switch” and violate state consumer protection laws.
  • Courts will assess if the labels would likely deceive a reasonable consumer and if alleged omissions are material to purchasing decisions.

Food for Thought:

• • Do you feel misled by unqualified front-label “100% Whole Fish” claims if a product contains undisclosed fillers or additives?
  • Should companies be required to put an asterisk and disclaimer by the claim if other ingredients are used?
  • Is it reasonable for consumers to expect nothing but fish based on the prominent “100% Fish” marketing?
  • Would you still buy the products at the same price if you knew they contained STPP filler and absorbed water weight?
  • How could food labeling regulations be improved to promote transparency and help shoppers make fully informed choices?

Real World Impact:

• • Sets Legal Precedent: The outcome here could influence how courts view and regulate the use of filler ingredients in foods marketed as whole or pure.
  • Influences Industry Practices: A plaintiff win may push Conagra and other brands to revise labeling or face more lawsuits over hidden additives.
  • Promotes Ingredient Transparency: Requiring clear disclosure of STPP or limiting “100% Fish” claims could help consumers make more informed choices.
  • Targets Seafood Fraud: Exposing alleged “short weighting” practices aims to stop deceptive water weight/filler that cheats shoppers.
  • Protects Consumer Rights: Sends message that false or misleading food labels will face scrutiny and corporations can be held liable for unfair tactics.

Elements of an Unfair/Deceptive Practices Claim:

• • 1. A deceptive or misleading act or practice, or omission of material fact;
  • 2. Committed in the conduct of trade or commerce;
  • 3. That has an impact on the public interest;
  • 4. Caused consumers actual injury or posed risk of harm; and
  • 5. Occurred in the state where law applies.

Shifting Burden of Proof:

• • It’s not on consumers to scour labels for fine print STPP disclosures that contradict larger “100% Fish” claims.
  • The prominent marketing creates a presumption of pure fish content that arguably shifts the burden to Conagra to show how a “reasonable consumer” should know otherwise.
  • Even if STPP is mentioned as an ingredient in tiny text, plaintiffs can argue this fails to negate the overall impression created by the unqualified “100% Fish” claims.
  • Courts put the onus on businesses not to engage in deceptive marketing practices, rather than expecting consumers to be detectives seeking to disprove claims.
  • Proving actual consumer confusion or injuries, while helpful, may not be required if the representations are shown to be false on their face.

Potential Defenses to Watch For:

• • Federal Preemption: Conagra may argue federal fish labeling rules override or “preempt” state law claims.
  • Attacking Plaintiffs’ Standing: Does each named plaintiff have concrete personal stake/injury to bring class claims?
  • Reasonable Consumer Standard: Would a reasonable buyer be misled or presume no STPP based on “100% Fish”?
  • Fine Print Disclosures: Does listing STPP in small ingredient text obviate deception even if it contradicts larger claims?
  • Role of Filler: Arguments that STPP has legitimate functions (e.g. moisture retention) besides inflating weight.

Class Certification Requirements:

• • Numerosity: Classes must be so large that individual joinder of all members is impracticable.
  • Commonality: Questions of fact or law common to the class must exist.
  • Typicality: Defenses or claims of the representative parties must be typical of the class.
  • Adequacy: Representatives must fairly and adequately protect the interests of the class.
  • Predominance & Superiority: For 23(b)(3) classes, common issues must predominate and class action must be superior to other methods.

Key Factors for the Court:

• • Are the classes so numerous that joinder is impractical? Census data, product sales figures and affidavits estimating class size can help establish numerosity.
  • Do common questions of law or fact predominate over individual issues? The core claims of deceptive “100% Fish” labeling and undisclosed STPP are common class-wide issues.
  • Are the named plaintiffs’ claims typical of the class? They allege the same misconduct and injuries from buying the mislabeled products as all class members.
  • Will the representatives adequately represent the class interests? Court looks at counsel’s qualifications, plaintiff involvement in the case, and any conflicts of interest.
  • Is class action superior to individual suits? Considers judicial economy, fairness, the stakes for each member, and manageability of the class action.

Possible Certification Challenges:

• • Nationwide Class Viability: Can common questions predominate with variations in state consumer laws?
  • Ascertainability: Is there an objective way to identify class members through records or self-identification?
  • Statute of Limitations: Will the class definitions need tailoring to account for differing state time limits on claims?
  • Individual Reliance & Damages: Will the court view issues of why each consumer bought the products and how they were harmed as necessitating mini-trials?
  • Class Representative Defenses: Are the named plaintiffs vulnerable to unique defenses that don’t apply to the class as a whole?

Dissecting the “Reasonable Consumer” Debate:

• • Conagra will likely argue no reasonable consumer would expect a frozen fish product to contain zero additives or only fish.
  • They may assert buyers know some moisture-retaining ingredients are used in freezing/processing.
  • If the STPP is listed in the product’s ingredient statement, even in tiny print, Conagra will contend reasonable consumers are on notice.
  • But plaintiffs can counter that the reasonable consumer doesn’t scour ingredient lists to fact-check front-label “100% Fish” promises.
  • As the 9th Circuit has held, reasonable consumers aren’t “expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.”

Proving Deception, Reliance & Injury:

• • Conagra will likely argue plaintiffs can’t show the alleged mislabeling actually deceived consumers, i.e. no proof buyers relied on or even noticed the “100% Fish” claims.
  • They may contend STPP is such a minimal, harmless additive that its non-disclosure couldn’t have influenced purchasing choices.
  • Attacking materiality, Conagra could assert the STPP is such a small amount that plaintiffs can’t prove any quantifiable overpayment or concrete harm.
  • But these are factual issues and plaintiffs may only need to show the claimed deceptions, if proven, would likely deceive an objective reasonable consumer.
  • Consumer surveys showing buyers believe “100% Fish” means only fish, sales data before and after corrective labeling, and expert analysis quantifying the “STPP premium” in the sales price could powerfully rebut these defenses.

Battling Over the Science & Economics:

• • Justifying STPP as Necessary: Conagra may present expert food chemist testimony that STPP is an essential additive to preserve taste, texture, safety with minimal usage levels.
  • Proving Water Weight Inflation: Plaintiffs’ experts can counter with testing evidence of excessive STPP causing measurable water weight gain in the products.
  • Calculating the “STPP Premium”: Economists may battle over methods to quantify how much, if any, of the products’ price is attributable to the hidden filler vs. real fish value.
  • Survey Says…: Dueling consumer behavior experts can present surveys showing if/how the “100% Fish” claim may deceive or influence purchases.
  • Fighting Over FDA Compliance: Regulatory experts on both sides may argue whether the labeling does or doesn’t satisfy FDA rules.

Unpacking the Price Premium Theory:

• • Plaintiffs allege Conagra’s mislabeling allowed it to charge more for the products than it could have without the deceptive “100% Fish” claims.
  • The core theory is that some quantifiable portion of the products’ purchase price is attributable to consumers’ belief that they contained only pure fish.
  • An economic expert could analyze sales and pricing data to estimate the premium buyers paid for the undisclosed STPP filler and water weight.
  • This may involve comparing sales volumes and prices before and after the alleged mislabeling began, or contrasting with similar products that lack the claims.
  • Conagra will surely argue no premium exists, the STPP content is negligible, and any damages model is speculative.

Clashing Over Classwide Calculations:

• • Conagra will surely argue plaintiffs’ damages theories can’t be proven across the board for all class members.
  • They’ll assert purchasers bought the products for various reasons unrelated to the “100% Fish” claim or STPP content.
  • Conagra may contend each class member would need to prove how much they subjectively valued the alleged mislabeling and overpaid as a result.
  • But plaintiffs can rebut this by arguing the price premium can be calculated objectively and mechanically on a classwide basis.
  • They’ll assert all buyers of the products at issue during the class period overpaid the same identifiable amount per unit due to the STPP non-disclosure.

The Fight Over Punitive Damages:

• • Punishing Deliberate Deception: Punitives require showing Conagra acted with malice, fraud, or willful/knowing violations of consumer laws.
  • Sending a Message: Arguing a large punitive verdict is needed to deter systematic mislabeling practices industrywide.
  • The Egregiousness Factor: More reprehensible conduct like concealing known risks warrants higher exemplary damages.
  • Profits as a Benchmark: Some states allow punitive damages up to a multiple of the illicit profits made from a violation.
  • Constitutional Limits: But the Supreme Court has held punitives generally shouldn’t exceed 10x the compensatory damages amount.

Reading the Tea Leaves on Dismissal:

• • Conagra will almost certainly move to dismiss arguing the complaint fails to state an actionable legal claim as pled.
  • They may assert technical defects like lack of specificity on when/where products were bought or vague allegations of deception and injury.
  • More substantively, Conagra may contend no reasonable consumer would be misled or consider the alleged STPP nondisclosure material.
  • But the court will likely give plaintiffs a chance to amend any obvious shortcomings in their initial pleading.
  • Since the core claims appear factually and legally supported, the case will probably survive dismissal and proceed to class certification and discovery.

Handicapping the Odds of Class Certification:

• • Class certification will be hotly contested as it shifts the pressure on Conagra to settle and raises the stakes exponentially.
  • Plaintiffs have a strong case for certification of the state subclasses, as the core “100% Fish” claims are uniform and their state laws are substantially similar.
  • But the nationwide class faces a tougher road due to variations in consumer protection laws across states and choice-of-law problems.
  • If a nationwide class isn’t certified, the state classes may still proceed collectively through multi-district litigation (MDL) consolidation.
  • Expect rulings certifying the state classes while denying or limiting any nationwide class without further subclassing to account for legal variations.

Prognosticating Settlement Scenarios:

• • Labeling & Ad Changes: Agreement to remove or qualify “100% Fish” claims and/or add more prominent STPP disclosures.
  • Refunding Purchase Price: Conagra offers to reimburse verified class members some full or partial percentage of their purchases.
  • Vouchers or Coupons: Free or discounted product offers to compensate buyers, often with restrictions or limitations.
  • Cy Pres Distributions: Settlement funds that can’t feasibly be distributed to class members directly may go to related charities or causes.
  • Attorneys’ Fees & Costs: Conagra would pay an agreed or court-approved amount to class counsel for their time and expenses.

Questions: Seafood Fraud & Labeling Laws

• • 1. What is “soaking” in seafood processing?
    • A) Marinating fish for flavor
    • B) Using STPP & water to inflate weight
    • C) Freezing technique to preserve freshness
    • D) Cleaning the fish before packaging
  • 2. How much extra water weight can STPP add on average?
    • A) 1-2%
    • B) 5-7%
    • C) 10-13%
    • D) 15-20%
  • 3. What’s the legal term for inflating seafood weight with additives?
    • A) Misbranding
    • B) Adulteration
    • C) Short weighting
    • D) Puffery
  • 4. What does the “reasonable consumer” standard assess in labeling cases?
    • A) If actual buyers were deceived
    • B) If an average consumer would likely be misled
    • C) If the company intended to deceive
    • D) If ingredient lists are compliant
  • 5. What’s a common defense raised in food labeling class actions?
    • A) Preemption by federal regulations
    • B) Lack of standing/injury
    • C) Puffery or opinion
    • D) All of the above

Answers: Seafood Fraud & Labeling Laws

• • 1. B) Soaking refers to using STPP and water to inflate seafood weight through added water retention.
  • 2. C) STPP can add an average of 10-13% excess water weight to fish products.
  • 3. C) Short weighting is illegally misrepresenting seafood weight through soaking or overglazing.
  • 4. B) The reasonable consumer test looks at whether a label would likely mislead an objective, average consumer.
  • 5. D) Common defenses in food labeling cases include preemption, lack of standing, and opinion/puffery arguments.

Questions: Class Actions 101

• • 1. What is the purpose of a class action lawsuit?
    • A) Let individuals file claims over $75,000
    • B) Allow many similar claims to proceed as one case
    • C) Provide a forum for general grievances
    • D) Ensure parties have diversity of citizenship
  • 2. How many plaintiffs are needed for a class action?
    • A) At least 10
    • B) More than 50
    • C) Over 100
    • D) So many that individual joinder is impractical
  • 3. What does it mean for common issues to predominate in a class action?
    • A) All class members have identical claims
    • B) Any individual issues are minor compared to common ones
    • C) The named plaintiff has the most typical claim
    • D) The class is likelyto prevail on the merits
  • 4. What does a class representative need to demonstrate?
    • A) Their claims are identical to all class members’
    • B) They have the largest individual damages
    • C) Their claims are typical and they’ll adequately represent the class
    • D) They have no conflicts of interest with the defendant
  • 5. What’s a common method for allocating settlement funds to class members?
    • A) Pro rata based on each member’s damages
    • B) Equal amounts per class member
    • C) A claims-made process
    • D) All of the above

Answers: Class Actions 101

• • 1. B) Class actions allow numerous similar claims against the same defendant(s) to proceed in one consolidated case.
  • 2. D) For a class action, the class must be so numerous that joinder of all individual members is impracticable.
  • 3. B) The predominance requirement ensures that individual issues don’t overshadow the questions common to the class.
  • 4. C) A class representative must have claims typical of the class and demonstrate they will adequately represent absent members.
  • 5. D) Class action settlements may allocate funds pro rata, equally, via a claims process, or some combination of methods.

Disclaimer

This article provides general information on the Conagra frozen fish class action and legal issues it raises. It’s not a substitute for professional legal advice. Laws and case developments may have changed since publication.

Consult an attorney specializing in false advertising and class action law for an assessment of your individual rights and potential claims related to mislabeled food products. Most consumer protection lawyers offer free consultations.