A California consumer filed a proposed class action in Los Angeles federal court, alleging that the packaging for Olé Mexican Foods tortillas misled consumers about the tortillas' origin. Olé was founded by Veronica Moreno and has been producing tortillas in Georgia since 1988. The packaging features a Mexican flag, Spanish-language phrases, references to “authentic Mexican ingredients,” and claims that tortillas are made using a recipe passed down through generations from Mexico.
The complaint alleges that Olé violated California’s Consumers Legal Remedies Act, false advertising law, and the unfair competition law, as well as warranty claims. It claims that the packaging's overall presentation would lead reasonable consumers to believe the tortillas were made in Mexico.
Reasonable Consumer Interpretations and Packaging Context
Olé argued that reasonable consumers would not infer that its tortillas were made in Mexico, because the packaging includes a “Made in the USA” disclosure on the back. Olé referred to recent cases in which courts ruled that back-of-package disclosures were material to consumer understanding. Olé also relied in part on a case involving marketing statements such as “Taste of Jamaica” and “brewed in a Jamaican style,” in which the court characterized the claims as non-actionable, arguing that its representations were stylistic and cultural.
The plaintiff argued that consumers should not be required to turn a product package around to find contradicting disclosures on the back. They argued that front-facing elements conveying an implied message of Mexican origin create misleading impressions that are not alleviated by a disclosure.
The Court’s Ruling
The court found Olé’s argument unpersuasive, evaluated the label as a whole, and concluded that it could not determine the effect of the disclosures based solely on the pleadings. It declined to resolve the reasonable consumer question without further factual development. The court denied Olé’s motion to dismiss, allowing the litigation to proceed; however, this case was ultimately dismissed.
Context and Consumer Surveys in Origin Claims
Explicit disclosures may not be enough to resolve false advertising claims in litigation when the front and back of the package conflict. Implied geographic origin claims may require empirical evidence of consumer understanding, as evidence of whether reasonable consumers are misled. The Litigation Surveys and Consumer Sciences group at IMS Legal Strategies designs and executes reliable consumer surveys measuring false and deceptive advertising, evaluating reasonable consumer perceptions of implied origin claims. Our experts work closely with counsel to ensure that survey methodologies meet judicial expectations and withstand scrutiny.
Contact IMS Legal Strategies for reliable consumer perception research.
