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.

This mea­ger fac­tual con­tent is not enough for the court to draw the rea­son­able infer­ence that Deoleo is liable for the mis­con­duct alleged.- U.S District Court

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.

See more: United States District Court Memorandum Opinion

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.



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