Sinatro and Prost claim they would not have bought the pasta if they had known it was not made in Italy, which is prized not only for making pasta but also for having the high-protein durum wheat needed to make a quality product.
U.S. Magistrate Judge Donna Ryu ruled Monday that the case has enough merit to proceed. “Their allegations are sufficient to establish an economic injury as to constitutional standing,” Ryu wrote.
Barilla is based in Illinois, but began as a shop selling bread and pasta in Parma, Italy. The Iowa and New York facilities use ingredients sourced from countries other than Italy, according to court documents.
The California law firm that filed the lawsuit did not immediately respond to The Washington Post’s requests for comment.
A Barilla spokesperson said Friday that the allegations are unfounded, pointing to wording on the packaging that says the pasta is made in the United States with ingredients from the United States and elsewhere. “We are very proud of the brand’s Italian heritage, the company’s Italian know-how and the quality of our pasta in the US and globally,” according to the statement.
Many modern consumers assume they are being misled or manipulated by companies, according to some law professors who study false advertising.
Rebecca Tushnet, a professor at Harvard Law School, said people feel cheated when they pay a price premium for what they consider a special product, such as chocolate from Switzerland.
She said consumers have consistently filed false advertising lawsuits against companies that sell products in grocery stores because it’s one of the last forums in society that isn’t bogged down by legal forms or contracts where consumers sign away their rights to sue. So, Tushnet said, this pent-up frustration at being manipulated by corporations comes out in your local aisle 5.
Tushnet said she understands that some people think these suits are silly, because they hardly expect to buy something made 6,000 miles away for $2. “Some of it is a matter of common sense,” she said.
But how do you quantify common sense when millions of dollars are at stake?
Tushnet said there has been an uptick in the past five or so years of plaintiffs and defendants in false advertising cases conducting public inquiries that talk about the case’s problems.
Megan Bannigan, a partner at Debevoise and Plimpton who has tried intellectual property cases, said investigations have come a long way and are a useful tool in false advertising matters.
When Bannigan started 15 years ago, she said, they would set up in a mall and try to pull 400 people into a room to ask them questions like where they think a product is from and whether they would be surprised to find out the actual origin of the product.
She said it has become much cheaper and more efficient to run online surveys, but they can still cost between $20,000 and $100,000. But that’s only a fraction of the cost in such cases, which can take millions of dollars to figure out.
Bannigan said she could see one or both sides of the Barilla suit conducting investigations, because it appears to be a legitimate legal issue.
“I don’t see the allegation as mere puffery,” she said.
Gregory Klass, a law professor at Georgetown University, said the history of false advertising laws dates back to the 1800s.
“There’s a long tradition of people caring about where their food and other products come from, so it’s not surprising to see lawsuits like this,” he said.
Klass pointed to the well-known example of the exclusive naming rights associated with sparkling wine from the Champagne region of France.
As for the pasta made in Iowa and New York, he said the real question is how important it is to consumers if the packaging is deceptive.
Alexandra J. Roberts, a law professor at Northeastern University in Boston, said some consumers are upset because Florida’s natural orange juice now also uses Mexican oranges.
The Florida citrus industry is known for its quality and consistency, so, she said, consumers are fine with paying more because the name on the box says it all.
The first item on Florida’s Natural’s FAQ page explains why it doesn’t use only Florida oranges: “The Florida orange crop can no longer meet consumer demand, so we supply only the best Mexican Valencia orange juice. This allows us to continue to supply enough orange juice for consumers’ growing thirst while maintaining the superior taste they love from Florida’s Natural.”
While the FAQ section of the product on Barilla’s website does not address where the pasta is made, the spokesperson pointed to another section of the website that explains why the pasta is not made in Italy.