Court Rejects Relevance of Davis Study in Dismissing Case Against Deoleo

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Suspiciously hot on the heals (six days after pub­li­ca­tion to be pre­cise) of a $7‑million set­tle­ment of a class action suit against Deoleo reached in March 2018, Washington D.C. plain­tiff Kevin Fahey, on behalf of the gen­eral pub­lic of the District of Columbia, sought to revive claims that Bertolli Extra Virgin Olive Oil (EVOO) is still not in fact what it claims to be.

On November 8, 2018, U.S. District Court for the District of Columbia accepted Deoleo’s Motion to Dismiss the suit.

As part of the March 2018 set­tle­ment, Bertolli agreed to ensure that ​‘Made in Italy’ meant just that — to bot­tle its prod­uct in pro­tec­tive green glass and to apply stricter test­ing pro­to­cols dur­ing the bot­tling process.

In the new action, Plaintiff Fahey sought to revive claims that Bertolli’s EVOO is in fact still not EVOO in vio­la­tion of D.C. Consumer Protection Law that makes it unlaw­ful ​“to engage in an unfair or decep­tive trade prac­tice, whether or not any con­sumer is, in fact, mis­led, deceived, or dam­aged…” Deceptive prac­tices include ​“represent[ing] that goods or ser­vices are of a par­tic­u­lar stan­dard, qual­ity, grade, style or model if in fact, they are of another.”

Fahey sup­ported his claim that Bertolli decep­tively mis­la­beled a bot­tle of olive oil that he pur­chased in 2018 solely on basis of the 2010 study on olive oil qual­ity con­ducted by the University of California at Davis. Judge Christopher Cooper, how­ever, was hav­ing none of it. Rejecting this ​“mea­ger ​‘fac­tual con­tent’” as valid sup­port for the alle­ga­tions, he said that the Court would have to indulge in method­olog­i­cal, tem­po­ral and geo­graphic assump­tions (all dubi­ous in his view) to accept Fahey’s claim.

Methodologically, he rejected that a 2010 Study could sup­port claims about Bertolli EVOO in 2018. Judge Cooper noted not only the small scale of the 2010 tests (3 bot­tles of dif­fer­ent lots) but that the sam­ples of Bertolli oil in that study had sat­is­fied the chem­i­cal cri­te­ria of the EVOO clas­si­fi­ca­tion but fell short only in the taste tests. He found that by their nature these tests were sub­jec­tive and noted that even in the 2010 study, the International Olive Council stan­dard states they should have mer­ited a sec­ond panel of testers to ver­ify the first.

On the tem­po­ral front, Judge Cooper cited the fact that if by its nature olive oil would vary from lot to lot, it would cer­tainly vary from year to year and sea­son to sea­son. He queried why tests done in 2010 on Bertolli EVOO should have any bear­ing on its prod­uct in 2018.

Finally, he noted that because bot­tles pur­chased in California do ​“not plau­si­bly sug­gest that the bot­tle Fahey pur­chased [in D.C.] was sim­i­larly defi­cient, much less that every bot­tle sold in D.C. was as well.” He sup­ports this with a find­ing in a 2011 case involv­ing EVOO sold in Florida where the claim was also rejected.

While on the one hand, the grant­ing of Deoleo’s Motion to Dismiss rested on Fahey’s almost total lack of evi­dence to sup­port his, let alone ​‘the peo­ple of Washington D.C.’s’ claim, the tone of the grant would sug­gest that this band­wagon just may have come to a screech­ing judi­cial halt and that the effects of the often-cited 2010 Davis study may have run their course.