On January 17, a California federal judge denied Costco Wholesale Corp.’s motion to dismiss a class action complaint that alleged the “dolphin-safe” claim on Costco’s canned tuna is false, deceptive, and misleading (subscription to Law360 required). U.S. District Judge William Orrick held that plaintiff Melinda Wright’s claims are not preempted by the Dolphin Protection Consumer Information Act (DPCIA) because Costco made its own, heightened promises that go above what the DPCIA requires.

According to the order, Costco’s Kirkland Signature brand of canned tuna features a “dolphin-safe” logo and also represents that it does not use tuna that was caught in a manner harmful to marine life. Other alleged promises include statements on product packaging that it is “100% traceable from sea to shelf” and uses “100% monofilament leaders & circle hooks.” However, plaintiff Wright argues that monofilament leaders are not sustainable or dolphin-safe because they are hazardous to marina mammals which become entangled in or ingest the almost invisible wire.

Judge Orrick denied Costco’s motion to dismiss because Wright’s claims do not focus on whether Costco abided by the DPCIA labeling requirements, but rather on whether its tuna products are indeed dolphin-safe and if Costco’s label representations are misleading in violation of California’s consumer protection statutes, or rise to a warranty breach and unjust enrichment. Indeed, Judge Orrick stated “[t]he question is whether Costco violates its own promises to consumers, not the DPCIA.”

Keller and Heckman will continue to monitor this case and report on any updates.