Article by Reuters: https://www.reuters.com/legal/litigation/trader-joes-100-manuka-honey-isnt-thats-ok-says-9th-circ-2021-07-15/
July 16 – A federal court on Thursday refused to revive a proposed class action against Trader Joe’s Co accusing the retailer of falsely marketing its “100% Manuka Honey,” which is not derived entirely from the manuka plant.
A unanimous 9th U.S. Circuit Court of Appeals panel ruled Thursday that reasonably minded consumers were unlikely to be deceived by the label because it is impossible to produce a honey made from only one flower source, and because the Food and Drug Administration allows honey to be labeled according to its primary flower source.
“We are pleased that the Ninth Circuit confirmed that Trader Joe’s Manuka Honey is exactly what the package promises,” Trader Joe’s, which is represented by Dawn Sestito of O’Melveny & Myers, said in a statement.
C.K. Lee of Lee Litigation Group, who represents the plaintiffs, did not immediately respond to a request for comment.
Manuka honey is made by bees that feed on the nectar of the manuka plant, which is native to Australia and New Zealand. It contains methylglyoxal, which has been found to have potential antibacterial properties and other health benefits when applied topically to wounds, burns and skin ulcers.
Because of its perceived benefits and limited simply and transportation costs, manuka honey is much more expensive than other honey, sometimes costing hundreds of dollars a bottle. It is sold under a grade system developed by manuka honey producers to indicate how much of the nectar that went into the honey derives from manuka.
According to the plaintiffs’ 2018 lawsuit, Trader Joe’s sold “100% New Zealand Manuka Honey” for $13.99 per bottle, though it was also labeled as a relatively low grade. They alleged that tests of its pollen content revealed that it was only 57.3% and 62.6% derived from manuka.
Trader Joe’s moved to dismiss, arguing that the case was preempted by the federal Food, Drug, and Cosmetic Act. It noted that the FDA allows honey to be sold under the name of its primary flower source, meaning that its honey was entirely manuka honey, albeit of a low grade.
The company also said that, because bees forage freely, it is impossible to ensure that they only go to a single kind of flower.
U.S. Magistrate Judge Kandis Westmore in Oakland, California, granted the motion, and the plaintiffs appealed.
Circuit Judge Kim Wardlaw, writing for the majority, agreed that the product conformed to FDA rules, since manuka was “the chief floral source for all of the product’s honey under the FDA’s definition, even if some of it is derived from nectar from other floral sources.”
She also said that a reasonable consumer was unlikely to be deceived.
“First and foremost, given the foraging nature of bees, a reasonable honey consumer would know that it is impossible to produce honey that is derived exclusively from a single floral source,” she wrote.
The judge also said that the product’s low cost relative to higher grade manuka honey products should have tipped off consumers.
Wardlaw was joined by Circuit Judge Daniel Collins and Judge Richard Eaton of the Court of International Trade, sitting by designation.
The case is Moore et al v. Trader Joe’s Co, 9th U.S. Circuit Court of Appeals, No. 19-16618.
For plaintiffs: C.K. Lee of Lee Litigation Group
For Trader Joe’s: Dawn Sestito of O’Melveny & Myers