U.S. food supplier Conagra has agreed to settle a class action lawsuit which alleged the Marine Stewardship Council (MSC) certification label on its Mrs. Paul’s and Van de Kamp’s frozen seafood products is deceptive.
In a status hearing in U.S. District Court for the Northern District of Illinois on 5 November, the two parties – Conagra and plaintiffs John Bohen and Abdallah Nasser – “report they have settled but need more time to finalize settlement,” a court document said.
No additional details or timeline were provided, and attorneys for the plaintiffs did not respond to SeafoodSource’s request for comment.
Nasser and Bohen sued Conagra in March 2023, alleging MSC’s ecolabel and the phrases “Certified Sustainable Seafood MSC” and “Certified Sustainably Sourced” on its Mrs. Paul’s and Van de Kamp’s pollock products deceived consumers. The plaintiffs claimed the products were actually being sourced from Russian fisheries employing unsustainable practices and sought USD 5 million (EUR 4.6 million) in damages.
“Russian pollock fisheries do not have an effective measure in place to protect endangered species, such as Steller sea lions and albatross. Pollock trawl fisheries in the Bering Sea also frequently catch snow crab as bycatch, which they ultimately discard,” the lawsuit claims. “Due to the use of pelagic trawls, these discarded crabs are estimated to have an 80 percent mortality rate. No reasonable consumer would believe the products to be sustainable if they knew of these fishing practices utilized in sourcing the products.”
In March 2024, U.S. District Judge Virginia M. Kendall ruled that the plaintiffs could continue to pursue claims against Conagra despite the company’s objections but could not be granted injunctive relief as they had requested. That would have required the company to take immediate action to change the labeling on its seafood packaging.
As it works to settle the lawsuit over labeling, Conagra is still fighting to have a separate class action suit, which claims that Conagra short-weights its Van de Kamp’s and Mrs. Paul’s products and “pumps up” its fish with the industrial filler sodium tripolyphosphate (STPP), dismissed.
Filed in the U.S. District Court for the Northern District of Illinois in Chicago on 11 June, that complaint also states that Mrs. Paul’s and Van de Kamp’s labels indicating the products are made with “100 percent Whole Fish” are inaccurate.
“STPP, a suspected neurotoxin, is typically used to manufacture things like rubber, paint, and antifreeze,” plaintiffs Cindy Pappert, William Martin, and Catherine Foster said in the original complaint. “STPP also is used by unscrupulous businesses in the seafood industry to engage in short-weighting. That is the case here.”
Conagra asked a judge to dismiss the lawsuit in late August 2024, claiming the allegations lack any merit. The company also said plaintiffs fail to plausibly allege that Conagra – as opposed to fish processors generally – engages in the practice of short-weighting, the filings state.
However, in late September, the plaintiffs said the judge should deny the motion to dismiss the case for numerous reasons.
The company’s packaging leads a “reasonable consumer to believe that the fish fillet part of the product is ‘100% WHOLE FISH,’ meaning that it is literally 100 percent fish. The statement is not disclaimed in any manner, such as ‘predominantly’ whole fish, or ‘contains’ whole fish, or with any asterisk instructing the consumer to look elsewhere as to the ‘true’ meaning of the term,” the plaintiffs stated.
Plaintiffs claim that those statements are false because the fillet part contains manually added water and STPP to increase the products weight.
The packages’ front label also prominently states that the fish is “WILD CAUGHT,” which “supports the notion that the fillet portion of the product would be in the same form as a wild-caught fish – i.e., without artificially added STPP and water.”
The only mention of STPP on the products’ labels is buried in fine print in a manner meant to ensure that as few consumers as possible ever see it, with the reference itself being misleading, the plaintiffs claim. Plus, the disclosure’s statement that the STPP was “added to retain moisture” incorrectly suggests that it was added to retain the fish’s natural moisture, not water artificially added for weight, the plaintiffs added.
However, in new documents responding to the plaintiff’s motion, filed in late October, Conagra again urged the court to dismiss the case, saying that the plaintiffs “failed to plausibly allege that reasonable consumers would be deceived by Conagra’s packaging.”
“Despite repeatedly alluding to ‘fillers’ and ‘added water,’ the complaint fails to plausibly allege either is included in the product,” Conagra said. The plaintiffs assert that Conagra “artificially pump[ed] the fish with water and STPP,” but they do not have support for the claim, aside from the fact that STPP and added water are listed in the ingredient list, according to the manufacturer.
As explained on the ingredient list, STPP is “added to retain moisture,” Conagra said, and water is included as a separate ingredient – outside the ambit of the parenthetical describing the Haddock or Pollock ingredient and located alongside other ingredients, like soybean oil and wheat flour, “which plaintiffs obviously do not allege were ‘pumped’ into the fish fillets,” Conagra stated.
The plaintiffs admit they failed to allege which products they purchased and cannot plausibly claim that reasonable consumers are deceived by the “100% Whole Fish Fillets” claim, Conagra said.
“Each of plaintiffs’ claims fails as a matter of law and should be dismissed with prejudice,” Conagra stated.
