Class Action Claims Fresh Market Fails to Include Nutrition Facts Label on Bakery Goods

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The Fresh Market, Inc. faces a proposed class action in which an Alabama consumer claims the grocery store chain has violated federal law by failing to print nutrition labels on bakery goods.

According to the 34-page complaint, Fresh Market, which operates at least 176 supermarkets across 24 states, has placed neither the old nor the updated Nutrition Facts label on the food items sold in its bakeries despite making the products neither from scratch nor on location.

Per the case, guidance published by the U.S. Food and Drug Administration specifies that the information panel for a packaged food must appear on the panel immediately to the right of the principal display panel, which, for the defendants’ baked goods, should be the reverse of the package.

The FDA’s 2013 “Guide to Industry,” a copy of which the suit says was provided to Fresh Market, specifies requirements for the location, shape, structure and contents of a food’s Nutrition Facts label, the lawsuit says, emphasizing that the agency’s guidance is proof enough that the labeling of food products is “stringently required and meticulously stated” by the federal government.

Despite being well aware of the FDA’s nutrition labeling requirements, which were updated in January 2020, Fresh Market has attempted to skirt its legal obligation to properly label its bakery goods, the complaint claims.

Upon information and belief, Fresh Market receives the dough for its bakery goods from a third-party vendor or Fresh Market-owned central location, the lawsuit relays. Once the dough is received, Fresh Market bakes and then packages the products in clear plastic containers to which a label displaying the name of the product and ingredients list is affixed.

Food labeling requirements specify, however, that Fresh Market is then required to affix the products’ Nutrition Facts label to the reverse side of the package, the case states.

“But Fresh Market does not do that,” the complaint reads, “thus violating the applicable FDA regulation and placing their customers at risk, in violation of 21 U.S.C. § 343.”

The lawsuit alleges Fresh Market falls under no nutrition labeling exemptions given the grocery store chain is neither a “pure” bakery—at which goods are prepared from scratch on site—nor a ready-to-eat establishment, such as a restaurant or school cafeteria, that prepares and serves food to customers for immediate consumption.

For a food to meet the criteria for being “primarily processed and prepared on-site,” and thereby not need a nutrition facts label, the food, according to FDA guidance, must undergo a change on site that alters its nutrition profile, e.g., filling, icing or enrobing, the case says. Fresh Market’s use of pre-made dough for its grocery store bakery goods does not fall outside of FDA labeling requirements, the lawsuit asserts.

“If pre-formed dough, pre-scaled/molded and par baked dough are merely proofed and baked or simply thawed, the product is considered to be ‘standardized’ and nutrition labeling is required,” the case shares, citing the FDA’s Guide to Industry.

The suit goes on to allege Fresh Market’s failure to affix Nutrition Facts to its bakery products renders the foods misbranded in that consumers could be misled by the lack of information. According to the case, Fresh Market has misbranded its goods by:

• Causing confusing or misunderstanding as to the source, sponsorship, approval or certification of its foods;
• Representing that the foods have sponsorship, approval, characteristics, ingredients, uses, benefits or qualities that they do not have;
• Representing that the foods are of a particular standard, quality or grade;
• Marketing bakery goods in violation of the law;
• Engaging in an unconscionable, false, misleading or deceptive act or practice in the conduct of trade or commerce; and
• Implying that its bakery goods are of a quality that they are not.

Per the complaint, Fresh Market has ignored federal labeling requirements while other grocery retailers—such as Whole Foods, Walmart, Target and Publix—use Nutrition Facts labels in compliance with the law.

The lawsuit looks to represent anyone in the U.S. who purchased Fresh Market’s bakery goods, with a proposed subclass of those who did so in Alabama.

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