Judge urged to consider court order against Jack in the Box even if damages claims are tossed

SAN DIEGO (CN) — An attorney for a San Diego resident who claims fast-food chain Jack in the Box falsely labels its packaging as recyclable argued that even if their claims for damages don’t move forward, their demand for the court to order the company to stop mislabeling its packaging should still be heard. 

The company’s mislabeling is a question of whether that practice is legal or illegal under California laws that define recycling, said Ryan Kuhn, one of the attorneys for the plaintiff’s, in a San Diego courtroom on Friday.  

“It’s a question of law, not fact,” Kuhn, of Sullivan and Yaeckel Law Group, said. 

Even if San Diego Superior Court Judge Michael Smyth grants Jack in the Box’s motion to dismiss the plaintiffs’ class claims and their claims for individual damages and restitution, the plaintiffs will still seek injunctive relief to stop the company from continuing to mislabel their plastic bags, takeout containers and drink cups, Kuhn said.   

Kuhn asked Smyth for leave to amend his client’s original complaint. 

Smyth said he would take Kuhn’s arguments under submission before signing a tentative ruling published on Thursday granting the company’s motion to dismiss the plaintiffs’ class and damages claims. 

“The recyclability of packaging is almost certainly less uniformly material to someone’s decision to purchase fast food than the number of minutes one receives on a mobile phone plan is to the decision to choose between phone plans,” Smyth wrote in the tentative ruling. “Whether customers knew, assumed, were unaware, or cared one way or the other about the recyclability of the materials at JITB would require individualized questions not common to the class.” 

A Jack in the Box customer, whether they were aware of or completely indifferent to the packaging of their food being recyclable or not as defined by California law, are not entitled to restitution, Smyth added. 

Some of the packaging laid out in the original complaint appears to be recyclable in California, even if they’re not easily recyclable, Smyth wrote. 

Since the plaintiffs’ complaint names different kinds of packaging that are made with different kinds of materials, that the company labels differently, which kind of packaging each customer got, and whether they were then able to recycle it are individual questions, not class questions, he added.

“Finally, while the recycling labels may be purposefully illegal under California law such that an enforcement action would be appropriate, that does not render a class action proper,” Smyth wrote.  

In April, Nicole Ozonian filed a class action claiming Jack in the Box uses the recycling symbol on plastic bags and other containers even though those materials are not widely accepted at recycling facilities.

The company’s drink cups, Ozonian claimed, don’t include codes indicating the type of plastic used — meaning recycling facilities can't sort the objects and instead send them straight to landfills.

Meanwhile, the company's takeout containers include black plastic that some but not all municipalities accept as recyclable, Ozonian added in her complaint.

Last but not least, Ozonian said the company's bags direct people to take their packaging to drop-off programs — even though less than 4% of stores have post-consumer recycling collection programs, and the bags don’t indicate which location has them. She said the fast-food giant knows its recyclability claims are false or misleading but has included them on packaging anyways.

Ozonian accused the San Diego-based company of violating false advertising laws and engaging in unfair business practices because it knows that its packaging isn't up to California’s recyclability standards, and that people are willing to pay more for products they believe are recyclable.  

Ozonian is asking the court for a jury trial and a variety of relief, including disgorgement of profits and an order forcing the company to correct its mislabeling practices.