Sodium Suit Is ‘Mmm, Mmm, Good’ for Trial

TRENTON, N.J. (CN) - Campbell Soup failed to dismiss a class action lawsuit that claims the company charges more for tomato soup that supposedly, but does not actually, contain less sodium than its regular product.

Four New Jersey women can take their claims against Campbell's to trial, U.S. District Judge Jerome Simandle ruled, noting that a fifth woman from New York, who filed the original complaint last year, voluntarily dismissed her claims.

Campbell's had tried to dismiss the suit altogether, claiming that its nutritional labeling is pre-empted by the federal Food, Drug and Cosmetic Act. It also claimed that consumers had not suffered a loss since they received a product worth its price.

Simandle disagreed, ruling on March 23 the plaintiffs had sufficiently pleaded claims under the federal Consumer Fraud Act and state warranty law.

"Plaintiffs, consistent with FDA's regulations, allege that it is misleading to identify a composite of condensed soups as 'REGULAR CONDENSED SOUP' juxtaposed with a picture of regular tomato soup and the phrase 'The famous taste ... with less salt!" the 40-page decision states. "This cause of action is consistent with and requires nothing more than the FDA's requirement that the reference food be non-misleadingly identified.

"This depiction of the image of regular tomato soup may plausibly suggest to a reasonable consumer that Campbell is representing that its 25% Less Sodium Tomato Soup contains 25% less sodium than its regular tomato soup, which is untrue for the formulation of the regular tomato soup at issue here," Simandle continues. "Similarly, Plaintiffs allege that the labels referring to 'OUR REGULAR PRODUCT' also referred to a hodge podge of soups, and that this was misleading; it is plausible that a reasonable consumer could believe that the comparison to 'OUR REGULAR PRODUCT' is drawing a comparison to Campbell's regular tomato soup then being sold. That claim is consistent with the requirements of the act that identification of the reference food not be misleading. If Plaintiffs' allegations are proven, state liability may be imposed consistently with the federal regulation."

Simandle agreed with Campbell's that the federal law pre-empts the class's claims over alleged omissions about the nutrient content of sodium. The consumers had claimed that Campell's should compare their regular tomato soup to the average of some or all of their regular condensed soups.

"This version of the claim is clearly preempted because the regulations only require the non-misleading identification of a proper reference food; they do not require the disclosure of any additional comparisons," Simandle wrote.

The judge also found that the class had failed to raise adequate allegations over Campbell's marketing materials. Only one of the named plaintiffs, Christine Velez, sufficiently pleaded that Campbell's website was misleading, according to the decision.

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