Frozen Fish Fillet Labeled "100% Whole Fish" While Allegedly Pumped With Preservative and Water, Suit Alleges — Judge Refuses to Dismiss

CHICAGO (LN) — A federal judge on Wednesday refused to throw out a putative class action accusing ConAgra Brands of deceiving consumers by labeling its Van de Kamp's and Mrs. Paul's frozen fish products "100% Whole Fish Fillets" while allegedly injecting the fillets with sodium tripolyphosphate and water to add weight, ruling the plaintiffs had adequately alleged both standing and a plausible deception claim under multiple state consumer-protection laws.

U.S. District Judge John J. Tharp, Jr. of the Northern District of Illinois sided with lead plaintiffs Cindy Pappert, William Martin, and Catherine Foster — residents of New York, California, and Massachusetts, respectively — each of whom alleged they bought the products several times in 2022 or 2023 and would not have bought them, or would have paid less, had they known the true contents.

The case turns on a single front-of-package claim. Eight products across the two brands — including Van de Kamp's Crispy Battered Fillets and Mrs. Paul's Beer Battered Fillets — carry the words "100% Whole Fish Fillets" in prominent type. The ingredient list, printed in fine text on the back, tells a different story: the first ingredient is listed as "Pollock (Pollock, Sodium Tripolyphosphate [Added to Retain Moisture])."

ConAgra argued that any reasonable consumer would understand the label to mean only that the products use real fish, not that the fillet contains no other ingredients — especially given the obvious presence of breading. Tharp rejected that framing, noting that the plaintiffs' grievance is not with the breading but with what was allegedly pumped into the fillet itself. Adopting language from a prior Northern District decision, Tharp wrote that the plaintiffs offer a plausible reading of the packaging, and the defendant offers another, and that is not a reason to dismiss the claim. See Geske v. PNY Techs., Inc., 503 F. Supp. 3d 687, 705 (N.D. Ill. 2020).

Tharp anchored his reasoning in the Seventh Circuit's 2020 decision in Bell v. Publix Super Markets, which held that a "100% Grated Parmesan Cheese" label could plausibly mislead consumers even though the back panel disclosed cellulose powder and potassium sorbate as additional ingredients. ConAgra had urged the court to follow a more recent Northern District ruling that found the label "Simply Granola: Oats, Honey, Raisins & Almonds" non-deceptive, but Tharp distinguished that case, noting that granola has no agreed-upon ingredient list — while "100% Whole Fish Fillets" does: fish.

On standing, ConAgra pressed three separate challenges and won only one. Tharp agreed the plaintiffs cannot seek injunctive relief, finding that once consumers know a label is deceptive they cannot credibly claim they will be fooled again. The plaintiffs had argued they cannot know for certain whether the false labeling has been or will be corrected, but Tharp found that theory insufficient, writing that uncertainty alone is a far cry from a concrete harm.

ConAgra's other standing arguments fared worse. Tharp found the plaintiffs adequately alleged injury-in-fact by stating they purchased at least one of the eight identically labeled fillet products and would have paid less absent the deception — and declined to dismiss the nationwide class allegations at the pleading stage, flagging that questions about whether the plaintiffs can adequately represent buyers in other states belong at class certification, not on a motion to dismiss.

The complaint also cleared the heightened Rule 9(b) fraud-pleading bar. Tharp found the allegations — identifying the deceptive label, the plaintiffs' pre-purchase reliance on it, the unexpected additive, the damages theory, and the 2022-or-2023 purchase dates at supermarkets in three states — covered the who, what, when, where, and how the Seventh Circuit requires. Quoting Vanzant v. Hill's Pet Nutrition, Tharp noted that nothing more is needed.

The case, filed in 2024, now moves toward class certification proceedings, where ConAgra may argue that conflicting state laws will defeat the predominance requirement for a nationwide class. The court indicated it anticipates staying discovery on the nationwide class allegations pending that determination.