Safeway Canned Tuna Lawsuit Dismissed

Below is a press release written by the law firm Perkins Coie LLP on behalf of Safeway updating the public on the resolution of the canned tuna lawsuit we wrote about in 2015 in the post Safeway Sued Over Canned Tuna. In short, “the five plaintiffs agreed to dismiss their lawsuits without pursuing class certification and with no admission of fault by Safeway.”

On November 5, 2015, Ehder Soto brought a putative class action in the United States District Court for the District of Northern California against Safeway alleging that Safeway private brand canned tuna was “under filled” and that the labeling on the cans was misleading. Four additional plaintiffs brought similar complaints against Safeway, which were consolidated with Mr. Soto’s complaint in the action styled In re Safeway Tuna Cases, Case No. 3:15-cv-05078 EMC. Safeway denied the allegations in the complaints. After extensive discovery of Safeway’s testing and inspections of its canned tuna by its suppliers and third-party quality assurance inspectors, the five plaintiffs agreed to dismiss their lawsuits without pursuing class certification and with no admission of fault by Safeway. The dismissal provides for no recovery for putative class members, and the dismissal is without prejudice to their claims.

Safeway has pending before the Food and Drug Administration (“FDA”) its application for a permit to market its canned tuna by participating in a Temporary Marking Permit (“TMP”) that the FDA initially issued to Bumble Bee Foods, Chicken of the Sea International, and StarKist Seafood Company on June 20, 2014 and extended on March 7, 2016.  Safeway and several other brands of canned tuna applied for “me-too” permits pursuant to the FDA’s invitation for them to participate in the TMP. See, Federal Register, Vol. 81, No. 44 published March 7, 2016.  The TMP will authorize Safeway to continue marketing its canned tuna with no change to the amount of tuna contained in the cans. Safeway will include “drained weight” stated in close proximity to “net weight” on the cans’ labels.

The agreement underlying the stipulation for dismissal recognizes that pending the FDA’s approval of Safeway’s application to participate in the TMP, Safeway will continue to market its canned tuna by continuing to require its suppliers to comply with the “pressed cake weight” standard of fill requirements found in 21 C.F.R. § 161.190(c)

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Christopher Durham
Christopher Durham is the president of My Private Brand and the co-founder of The Vertex Awards. He is a strategist, author, consultant and retailer who built brands at Delhaize-owned Food Lion, and lead strategy and brand development for Lowe’s Home Improvement. He has consulted with retailers around the world on their private brand portfolios including: Family Dollar, Petco, Staples, Office Depot, Best Buy, Metro (Canada), TLW (Taiwan) and Hola (Taiwan). Durham has published five definitive books on private brands, including his first book, Fifty2: The My Private Brand Project. In 2017, he will debut his newest book, Vanguard: Vintage Originals, a visual tour of innovation and disruption in private brand going back to the mid-1800’s. Dynamic in his presentation while down to earth and frank in his opinions, he has presented at numerous conferences, including FUSE, The Dieline Conference, Packaging that Sells, Omnishopper and PLMA’a annual trade show in Chicago. Durham lives in Charlotte, NC with his wife, Laraine, and two daughters, Olivia and Sarah.