A class action complaint was recently filed against Bumble Bee Foods, LLC (“Bumble Bee”), the makers of canned fish and seafood. The false advertising lawsuit stems from the plaintiff’s assertion that Bumble Bee falsely implies its Premium Select Medium Red Smoked Salmon Filets in Oil are high quality, wild-caught, and naturally smoked.  The plaintiffs believe the fish is low-quality, farm-raised Chilean salmon that Bumble Bee colors from its natural gray flesh to red and flavors with artificial smoke flavoring in order to charge a price premium.  Specifically, the plaintiffs assert that Bumble Bee omits referring to this product as “farm-raised,” a phrase that the plaintiffs state Bumble Bee uses on other products.  Moreover, the plaintiffs claim that Bumble Bee’s product label includes the phrases “Premium Quality” and “Premium Select Medium Red” alongside an image of a medium-red colored salmon jumping out of water surrounded by mountains and evergreen trees, implying a wild-caught message.

Takeaway: Although we do not yet know how the court will decide this case, advertisers are responsible for all reasonable takeaways of their express and implied claims and should carefully consider use of imagery to determine whether such imagery communicates a claim requiring substantiation.