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Law360, New York (November 22, 2016, 5:30 PM EST) — Three diet-conscious Californians are claiming that Chipotle Mexican Grill Inc. misleads consumers about the calorie amount in its chorizo burritos, saying in a proposed class action in state court that there’s no way they contain only 300 calories.
The consumers leading the suit say that Chipotle’s menu boards led them to believe that the chorizo burrito — released earlier this year — contained far fewer calories than it actually does. One of the named plaintiffs, David Desmond, said that he picked the burrito because he thought it was a healthier, lower calorie choice, but realized that it couldn’t have been only 300 calories when he felt “excessively full” after eating, according to the Nov.16 complaint filed in Los Angeles Superior Court.
“It’s all about the transparency and veracity of advertisement,” Boris Treyzon of Abir Cohen Treyzon Salo LLP, counsel for the consumers, told Law360 on Tuesday. “A lot of people are coming forward saying they were misled.
“If it’s an honest mistake they will have a chance to prove its an honest mistake. We suspect it’s a bit more sinister,” Treyzon said.
Because of Chipotle’s false nutritional information on menus, the plaintiffs say that its customers are “lulled into a false belief that the items they are eating are healthier than they are, and thereby encouraging repeat patronage.”
The menu boards at various Los Angeles-area Chipotles showed photos of the burrito next to the 300 calorie count claim, according to the complaint.
According to Chipotle’s online nutrition counter, it is only the chorizo filling that is 300 calories; adding a flour tortilla and white rice ups the calorie count to 930.
The consumers allege violations of state unfair and fraudulent business code, and that Chipotle knew or should have known that its advertisements were misleading.
They seek to represent Californians who have eaten at a Chipotle in the past four years, according to the complaint.
Chipotle recently prevailed in another proposed class action over its labeling, one that alleged the Mexican chain lied about genetically modified ingredients.
A Florida federal judge denied class certification and permanently dismissed the case last week. U.S. District Judge Marcia G. Cooke did not offer explanation beyond citing reasons she said she mentioned at a hearing a day eaarler in Miami over Chipotle’s motion for summary judgment and plaintiff Leslie Reilly’s motion for class certification.
The company refuted Reilly’s claims of false marketing in its June 17 motion, saying that it openly discloses its meat and dairy products could come from animals that eat GMO feed and argued that reasonable consumers don’t believe this means its menu items have GMOs.
In its bid for summary judgment, Chipotle said that Reilly not only lacked standing to sue because she was not deceived or harmed, but also because no reasonable consumer would share her allegations of deception.
Further, Reilly could not establish that any allegedly deceptive practice caused her harm or led to Chipotle’s being unjustly enriched, the company said, arguing that she paid the same price for food she purchased at Chipotle before and after its 2015 announcement that all its ingredients are free of GMOs.
Representatives for Chipotle didn’t immediately respond to requests for comment on Tuesday.
The consumers are represented by Boris Treyzon and Alexander J. Perez of Abir Cohen Treyzon Salo LLP.
Counsel information Chipotle wasn’t immediately available on Tuesday.
The case is Desmond v. Chipotle Mexican Grill Inc., case number BC640700, in the Superior Court of the State of California, County of Los Angeles.
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