Food manufacturers received a setback earlier this week, when Judge Thelton Henderson of the Northern District of California ruled that where a consumer identifies a specific class period in which a defendant food manufacturer labeled its products in a deceptive manner, the consumer does not have to allege the specific date he or she purchased the product.

In Figy v. Lifeway Foods, Northern District of California, Case No. 13-cv-04828-THE, the plaintiff consumer brought claims against Lifeway Foods, a producer of retail dairy beverages and products similar to yogurt. The plaintiff alleged he had purchased Lifeway Foods products labeled with the ingredient “Evaporated Cane Juice” (“ECJ”) five times between October 17, 2009 and the filing of the complaint. The plaintiff further alleged that while he was aware the products contained ECJ, he did not know that ECJ indicated the products contained added sugar. Plaintiff claimed he would not have purchased the products if he knew they contained added sugar, and asserted 13 causes of action, including claims under the California Unfair Competition Law and the Consumer Legal Remedies Act.

The case was originally filed in 2013 and was stayed in 2014 pending final guidance from the FDA regarding ECJ. In January 2016, the Court lifted the stay in light of the FDA’s delay in issuing its guidance, and Lifeway Foods filed an updated motion to dismiss in 2016. (On May 25, 2016, the FDA issued its final guidance on ECJ, reiterating that ECJ is not a common or usual term for sweetener, and should be identified on labels as “sugar” preceded by a truthful, non-deceptive descriptor if necessary (e.g., cane sugar).)

In determining the motion to dismiss, the Court considered whether the complaint should be dismissed because the plaintiff failed to allege the specific date on which he purchased the products at issue. The Court declined to do so, concluding that the plaintiff’s allegations were sufficient to give the defendants notice of the particular misconduct alleged because they identified a specific class period. In reaching that conclusion, the Court considered case law from the Central District of California which had resulted in dismissal for failure to allege the specific purchase date, instead finding other cases from the Northern District of California more persuasive.

Thus, as the Figy case indicates, at least in the Northern District of California, food manufacturers are unlikely to eliminate a consumer class action at the pleading stage merely because the consumer fails to allege the specific date on which he or she purchased the product.