Costco is filing a motion to dismiss a lawsuit claiming the wholesaler falsely advertises its Kirkland Signature Rotisserie Chicken as containing “no preservatives.”
Request to Dismiss
Costco’s lawyers stated in court documents supplied on June 4th that the brand will make the dismissal request in mid-August, according to USA Today. Shortly after the original lawsuit was filed, Costco removed the signage from its rotisserie chicken.
However, in their most recent filing, Costco stated they did not violate the laws in question, including Washington’s Consumer Protection Act, California’s Unfair Competition Law, and California’s False Advertising Law. The California Unfair Competition Law specifically refers to unlawful, unfair, or fraudulent business practices and misleading advertising.
In the filing, the plaintiff focuses on in-store and online signage advertising the chicken with “no preservatives,” specifically with the ingredients sodium phosphate and carrageenan. However, Costco and its lawyers state, “This theory is fatally flawed. Plaintiff’s own sources contradict it, the regulations of the U.S. Food and Drug Administration (FDA) discredits it, and the product’s label dispels it.”
Those ingredients are within the product’s seasoning, and Costco shared with People that, “We use carrageenan and sodium phosphate to support moisture retention, texture, and product consistency during cooking. Both ingredients are approved by food safety authorities.”
Furthermore, in the filing, Costco asks for the complaint to be “dismissed with prejudice,” alleging that “amendment is futile because Plaintiffs cannot change the facts to salvage their claims.”
No Price Premium
In addition to the dismissal, Costco also addressed the plaintiff’s claim that there is a “price premium” on the chicken. This would allegedly allow the wholesaler to charge more for preservative-free chicken.
Costco wrote, “The Rotisserie Chicken’s price remains unchanged at its well-known $4.99. This admission is fatal: there is no price premium, and there never was one. Costco sells accurately labeled fully cooked and seasoned chicken.”
Costco also asked the court to dismiss the plaintiff’s request to ban the company from using the “no preservatives” signage.
The wholesaler added, “The Amended Complaint does not identify a single ‘competitor’ who prices a whole rotisserie chicken for sale for less than $4.99.”
The Class Action Lawsuit
In January, two women in California (Bianca Johnston and Anastasia Chernov) filed a proposed class action lawsuit. They claimed Costco violated multiple laws when stating its Kirkland Signature Rotisserie Chicken contains “no preservatives.”
The plaintiffs alleged the chicken contains sodium phosphate and carrageenan, calling the ingredients preservatives. Thus, Costco allegedly “systematically cheated customers out of tens – if not hundreds – of millions of dollars” through false advertising.
In January, the plaintiffs went into further detail about the alleged preservatives. They argued that sodium phosphate controls pH and reduces fat oxidation, slowing microbial growth and spoilage. They also claimed the carrageenan is used “to preserve food texture and extend shelf life.”
The complaint added, “Because sodium phosphate and carrageenan perform preservative functions in the Rotisserie Chicken, the Rotisserie Chicken in fact contains added preservatives.”
Requests from Plaintiffs
In the original lawsuit, lawyers for the plaintiffs requested class certification to include U.S. customers who purchased the chicken, along with a subclass of customers in California.
They also requested unspecified monetary damages and asked Costco to cease advertising the chicken as preservative-free.