Bready or not, here they crumb!  A New York federal judge said that plaintiffs can continue their proposed class action against T. Marzetti Company, frozen toast-maker, for allegedly making deceptive and misleading claims that its Texas Toast products are free of preservatives. The company’s motion to dismiss was denied after the judge ruled the plaintiffs’ allegations were sufficient.

Texas Toast is a brand of frozen bread slices with a flavored spread. The products are labeled and advertised as containing “no preservatives” despite the spread containing citric acid, which plaintiffs argue serves as a preservative to “stabilize the product’s active ingredients.” In the initial complaint, plaintiffs alleged that their reliance upon the “no preservatives” claim made on the product’s front label when making their purchase was intentional – the company, they said, has profited from consumers’ preference for food products that are perceived as healthier or preservative-free, knowing that consumers are willing to pay more for a product that communicates it is a healthier alternative to similar products.

So, is the toast-maker…toast? Well, for now, the court did not buy T. Marzetti’s arguments to dismiss the claims, so the suit is set to proceed. The company contended the plaintiffs failed to plausibly allege that the “no preservatives” claim is misleading because they did not provide facts sufficient to establish that citric acid is in fact a preservative, nor did they adequately allege that reasonable consumers would understand citric acid to function as one. The court disagreed, stating plaintiffs’ allegations were sufficient at this stage, and that a determination of whether a reasonable consumer would be misled by the “no preservatives” labeling is a question of fact that would not be suited for resolution at the motion to dismiss stage.

The consumers say that they relied on product’s the “no preservatives” label and would not have purchased them – or would have paid less – had they been aware of that the products contained preservatives at the time of purchase.