CONSUMER WATCH: A class of consumers claim that Simpson’s canned tomatoes use labeling that suggests they are high-end San Marzano tomatoes, when in fact they are lower quality San Merican tomatoes.

By MICHAEL GENNARO, Contributing Writer

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SAN FRANCISCO (CN) — A federal judge is allowing some claims to continue against Simpson Imports from consumers who claim that the company uses misleading labels on its canned tomatoes.

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Andrea Valiente, the named plaintiff in a 2023 class action, claims that Simpson’s canned tomatoes use labeling that suggests they are high-end San Marzano tomatoes grown in Italy, when in fact they are lower quality San Merican tomatoes.

Simpson no longer sells San Marzano tomatoes, but Valiente says the packaging on the San Merican tomatoes is extremely similar to Simpson’s old San Marzano packaging.

US District Judge Araceli Martinez-Olguin, a Joe Biden appointee, wrote in her opinion that the critical issue is whether the products are “substantially similar” with respect to any purported mislabeling. Martinez-Olguin wrote that Valiente had standing because her claims about the tomato products were consistent and all of the tomatoes shared similar branding that could mislead a reasonable consumer.

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The old cans had an illustration of a red tomato with “San Marzano” written on it. Valiente says the current cans use a nearly identical design, using the same red tomato but replacing the “San Marzano” text with the abbreviation “SMT.” On the label’s SMT abbreviation, embedded within the letters corresponding to Simpson’s brand is text: “San” for “S,” “erican” is nested within the letter “M,” and “omato” appears under “T.

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San Marzano tomatoes originate in Naples, Italy, and are thinner and more pointed than a standard Roma tomato, and have a sweeter, less acidic taste. Because of these characteristics, San Marzano tomatoes are better suited for making tomato sauces, and are typically priced at double or triple the price of an ordinary tomato.

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Valiente claims the text embedded in the “SMT” abbreviation is “so comically miniscule that it is almost impossible to see with the naked eye,” and that the tomato illustration is of a San Marzano tomato. Additionally, the San Merican tomatoes are sold at a similar price point to San Marzano tomatoes, furthering the deception.

Valiente asserts claims for violation of all three prongs of California’s Unfair Competition Law, violation of California’s Consumers Legal Remedies Act, violation of California’s False Advertising Law, fraud, breach of express warrant and unjust enrichment.

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“Consumers have purchased hundreds of thousands of defendant’s products under the false, but reasonable, impression that they were purchasing a San Marzano varietal of tomato, when they were not,” Valiente said in her complaint.

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Simpson moved to dismiss the claims, saying that Valiente lacked standing, that the “SMT” abbreviation was up to artistic interpretation and that Valiente’s claims were preempted by the Food, Drug, and Cosmetic Act — which expressly preempts all state statutes and law that directly or indirectly establish any requirement for the labeling of food that is not identical to the federal requirements set forth by statute and Food and Drug Administration regulations.

Simpson claimed that Valiente’s complaint imposed a disclosure agreement on the company that the FDCA does not contain. Simpson claimed the FDCA does not require them to state the varietal of tomato, but only specify that the products are tomatoes, which the label does, and their country of origin, which the label does.

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Martinez-Olguin, however, ruled in Valiente’s favor for the FDCA claims because Valiente is challenging the text on the label, not the representation of the products as tomatoes.

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“Valiente expressly disclaims any attempt to impose labeling requirements other than those set by federal law. Instead, Valiente seeks to hold Simpson accountable for adding content that, as alleged, is both (1) not required by federal regulations and (2) misleading. As such, Valiente’s claims are not preempted,” Martinez-Olguin wrote.

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The court may revisit both of these claims in the future, however, Martinez-Olguin wrote, because some of Valiente’s claims in her complaint are contradicted by some of the present arguments before the court. 

Claims under the California Unfair Competition Law, California Consumer Legal Remedies Act, and False Advertising Law claims will all be allowed to proceed at this stage because of the confusing nature of the tomatoes’ label, Martinez-Olguin wrote.

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“It is plausible for reasonable consumers to view the letters ‘SMT’ and the illustration on Simpson’s label and expect a San Marzano tomato, particularly when they have paid a price that is comparable to other San Marzano tomatoes,” Martinez-Olguin wrote.

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Martinez-Olguin did grant Simpson’s motion to dismiss Valiente’s claims for injunctive relief because there is no threat of future harm now that Valiente is aware of the deception. The judge also dismissed class claims at this point because Valiente is still conforming her proposed class definition to her counsel’s representation.

Valiente must file any amended complaint in the next 21 days.

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