Challenge to Tomato Origin Moves Forward

Advertising Law

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A putative class action against Cento Fine Foods (Cento) challenging the packaging and labeling representations regarding its “Certified San Marzano” tomato products will move forward after a California federal court denied the defendant’s motion to dismiss.

Earlier this year, a trio of tomato fans filed a false advertising suit against Cento, alleging that its “Certified San Marzano” tomatoes are not truly San Marzanos. The plaintiffs claimed that the term “San Marzano” refers to canned tomatoes that are grown in the Agro Sarnese-Nocerino region of Campania, Italy, and “must have a Denominazione di Origine Protetta (D.O.P.) marking” from the Italian Consortium that “was granted the right to certify and approve San Marzano tomatoes by the European Union.”

Cento asked the court to dismiss the suit, arguing that the plaintiffs failed to state a claim, but U.S. District Court Judge Haywood S. Gilliam, Jr., sided with the plaintiffs.

The allegations stated in the complaint—that each of the named plaintiffs relied upon the “Certified” marking on the product packaging, that the “Consortium is the only entity that can certify and approve a San Marzano tomato,” that “San Marzano tomatoes must have a D.O.P. marking, certifying that the tomato was grown in the correct region and according to the correct specifications,” and that Cento’s products are not grown specifically in the Agro Sarnese-Nocerino region and lack the Consortium’s D.O.P. marking—were sufficient to state a claim under California’s Unfair Competition Law, Consumer Legal Remedies Act and False Advertising Law, the court said.

Of particular note is the court’s discussion of the allegations based on the certification claim.

Cento argued that the plaintiffs could not have been misled by the “Certified” label claim because its products are in fact certified and the certifier is expressly identified on the company’s website, and also because Cento does not use the D.O.P. markings on the label. 

The court was not convinced and noted that the qualifying language regarding the certification of Cento’s tomatoes was not included on the packaging itself. “Instead, the packaging states, ‘These San Marzano tomatoes are certified [by an] independent third-party agency and are produced with the proper method to ensure superior growth,’” the court continued. “This language does not clearly disclose that the independent third-party agency is not the Consortium, and instead relies on consumers subsequently visiting its website to find such detail.”

These facts distinguished the case from others where a motion to dismiss was granted based on qualifying language on the package itself, which made the meaning of the representation clear, the court explained.

Judge Gilliam denied the defendant’s motion to dismiss.

To read the order in Snarr v. Cento Fine Foods, Inc., click here.

Why it matters: The court’s order provides an important reminder for advertisers to use caution in using a “certification” claim on product labels and packaging, and to make sure to place any disclosures or qualifying language regarding the certification near the claim itself.