No Meat to Tyson ‘Prime Pork’ False Ad Suit, Judge Says (subscription to Law360 required)

• USDA grading and quality symbols are available to provide information to consumers about USDA graded beef’s tenderness, juiciness, and flavor.  ‘Prime’ denotes the highest quality (juiciest) beef.  The USDA does not grade pork in the same way it grades beef.
• On June 26, 2020, a Florida federal judge dismissed a proposed class action lawsuit over the packaging for Tyson Fresh Meat, Inc.’s ‘Chairman’s Reserve Prime Pork’ and advertising by Tyson and The Fresh Market, Inc. that compares the pork to beef products sold as ‘prime.’  The judge found that a reasonable consumer who knows enough about USDA’s grading procedures to recognize that beef can get the ‘prime’ grade would know that USDA does not grade pork in the same way and would notice the absence of a USDA label that appears on all graded meat.  Thus, the ‘Prime’ label on the pork is nonactionable puffery.
• The judge found that USDA’s approval of Tyson’s label for the pork did not preempt the plaintiffs’ false advertising claims because USDA does not regulate advertisements.  Key to Tyson’s victory, however, the judge found plaintiffs did not allege that advertisements for the pork contained language suggesting that USDA grades pork or that it had graded their products in particular.