Sinatro and Prost claim they would not have purchased the pasta if they had known it was not made in Italy, which is valued not only for creating pasta but also for having the high-protein durum wheat needed to make a quality product.
US Magistrate Judge Donna Ryu ruled Monday that the case has enough merit to continue. “Their allegations are sufficient to establish an economic injury for purposes of constitutional standing,” Ryu wrote.
Barilla is based in Illinois but began as a shop that sold bread and pasta in Parma, Italy. The facilities in Iowa and New York use ingredients sourced from countries other than Italy, according to court filings.
The California law firm that filed the suit did not immediately respond to The Washington Post’s requests for comment.
A Barilla spokesperson said Friday that the claims are unfounded, pointing to wording on the packaging that says the pasta is made in the United States with ingredients from the US and elsewhere. “We’re very proud of the brand’s Italian heritage, the company’s Italian know-how, and the quality of our pasta in the US and globally,” according to the statement.
Many modern consumers assume they are being misled or manipulated by corporations, according to some law professors who study false advertising.
Rebecca Tushnet, a professor at Harvard Law School, said people feel duped when they pay a price premium for what they consider a special product, such as chocolate from Switzerland.
She said consumers have been steadily filing false-advertising suits against companies selling products in grocery stores because it is one of the last forums in society that is not bogged down by legal forms or contracts in which consumers sign away their rights to sue. So, Tushnet said, this pent-up frustration at being manipulated by companies is expressed in your local Aisle 5.
Tushnet said she understands that some people find these suits silly, because they hardly expect to buy something made 6,000 miles away for $2. “Some of it is a matter of common sense,” she said.
But how does one quantify common sense when millions of dollars are on the line?
Tushnet said there has been an uptick in the past five or so years of plaintiffs and defendants in false-advertising cases conducting public surveys that speak to the issues of the case.
Megan Bannigan, a partner at Debevoise and Plimpton who has tried intellectual-property cases, said surveying has come a long way and is a useful tool in false-advertising issues.
When Bannigan started 15 years ago, she said, they would set up inside a mall and try to pull 400 people into a room to ask them questions such as where they think a product is from and whether they would be surprised to find out the product’s actual origin.
She said it has become much cheaper and more efficient to run online surveys, but those can still cost between $20,000 and $100,000. But that is only a fraction of the cost in these kinds of cases, which can take millions of dollars to figure out.
Bannigan said she could see either or both sides of the Barilla suit conducting surveys, because there does seem to be a legitimate legal issue.
“I don’t see the claim as mere puffery,” she said.
Gregory Klass, a law professor at Georgetown University, said the history of false-advertising law dates to the 19th century.
“There’s a long tradition of people caring about where their food and where other products come from, so it’s not surprising to see lawsuits like this,” he said.
Klass pointed out the well-known example of the exclusive naming rights associated with sparkling wine from the Champagne region of France.
As for the pasta made in Iowa and New York, he said the real question is how important it is to consumers whether the packaging is deceptive.
Alexandra J. Roberts, a law professor at Northeastern University in Boston, said some consumers are agitated because Florida’s natural orange juice now also uses Mexican oranges.
The citrus industry in Florida is heralded for its quality and consistency, so, she said, consumers are fine with paying more because the name on the box says it all.
The first item on the FAQ page for Florida’s Natural explains why it is not solely using Florida oranges: “The Florida orange crop can no longer meet our consumer demand, so we are adding in only the best Mexican Valencia orange juice. This allows us to continue supplying enough orange juice for consumers’ increasing thirst while maintaining the superior taste they love from Florida’s Natural.”
While the product FAQ section of Barilla’s website doesn’t address where the pasta is made, the spokesperson pointed to another section of the website that explains why the pasta isn’t all made in Italy.