Class Action Alleges Product is “Fake Guacamole” Because it Contains Less than 2% Avocado
Exactly what is “guacamole”? That question lies at the center of a new class action lawsuit filed in California last week against Kraft Foods. The lawsuit alleges that Kraft defrauded customers by marketing a dip as “guacamole” when it contained less than 2% avocado. The author predicts an uphill battle for plaintiff’s lawyer, however, in obtaining certification of the lawsuit as a class action. In many ways, the putative class action is similar to the action against tobacco manufacturers for the sale of “light” cigarettes – particularly with respect to the individual questions of fact that will exist, such as whether people buy Kraft guacamole because they liked the way it tastes, not because they believe it contains some undefined “higher” amount of avocado. In a significant difference, the label on Kraft’s product apparently discloses the fact at issue in the lawsuit, whereas the labels on “light” cigarettes did not, thereby creating a substantial hurdle as to reliance. According to Los Angeles Times reporter Jerry Hirsch, plaintiff admits that she read the label after tasting the dip “and found there was almost no avocado”; she does not explain why she did not read the label before purchasing the product. Another significant difference is that the lawsuit was filed in state court, and the requirements for class action certification under California law differ from those set forth in Rule 23 of the Federal Rules of Civil Procedure.
Mr. Hirsch reports that plaintiff’s lawyer intends to soon file similar class actions against other makers of guacamole. Mr. Hirsch also reports that Kraft states customers knew that the dip is “guacamole-flavored.” Jerry Hirsch’s article, entitled “Lawsuit stirs up guacamole labeling controversy,” may be found in the Business Section of the November 30, 2006 Los Angeles Times.