Obtained Dismissal with Prejudice of Putative Nationwide False Advertising Class Action for Global Food Manufacturer of Red Baron Pizza

August 2022

Zuchowski v. SFC Global Supply Chain, Inc. (S.D.N.Y)

In August 2022, Robins Kaplan obtained a Rule 12(b)(6) dismissal of a putative nationwide false advertising class action against global food manufacturer SFC Global Supply Chain Inc. (“Schwan’s”). Plaintiffs sought millions in class-wide damages based on alleged false and misleading labeling and marketing of Schwan’s Red Baron pizzas with the use of “preservative-free crust” and “no artificial flavors.”

Plaintiffs filed suit in the U.S. District Court for the Southern District of New York. Class counsel challenged the “preservative-free” claims based on ingredients that were allegedly used as preservatives in breads and baked goods—but not the Red Baron pizzas that were preserved by frozen storage. Plaintiffs also challenged the “no artificial flavors” claim based on the use of hydrolyzed vegetable protein that contained MSG, which imparts a savory flavor in the pizza sauce.

Robins Kaplan obtained dismissal of all claims using a combination of the Twombly pleading standard and FDA regulations. In dismissing the complaint with prejudice, the district court agreed with Schwan’s that long-standing federal regulations were persuasive evidence of reasonable consumers’ understanding of food labeling, and that the “preservative free” claims were truthful and not misleading unless the ingredients actually functioned as preservatives in the Red Baron pizzas. The court also agreed that the hydrolyzed proteins could not be artificial flavors if they were derived from plant-based sources, like corn and soybeans.

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Stephen P. Safranski

Partner

Co-Chair, Antitrust and Trade Regulation Group

Geoffrey H. Kozen

Associate

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Rebecca A. Zadaka

Attorney

Pronouns: she/her

Tyler Simmons

Discovery Attorney

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