A deft use of the letter “k” enabled P.F. Chang’s China Bistro to dodge a false advertising lawsuit alleging it failed to serve customers real crabmeat.
A Southern California customer claimed that the restaurant duped consumers by selling food items with “krab mix” that was imitation crab and not real crabmeat. After learning that his Kung Pao Dragon Roll and California Roll were not stuffed with real crab, he sued the restaurant chain on behalf of a putative class of dissatisfied diners.
P.F. Chang’s moved to dismiss, countering that no reasonable consumer would believe that “krab mix” contains real crab. U.S. District Judge Percy Anderson agreed.
Citing lawsuits which fruitlessly claimed that Froot Loops contained real fruit and Cap’n Crunch’s Crunch Berries contained real berries, the judge explained that “the mix at issue is spelled ‘krab[,]’ not ‘crab.’ While this might be a fanciful take on the word ‘crab,’ no reasonable consumer would view the words ‘krab mix’ to mean real crab.”
Reasonable consumers also understand “that cheaper sushi rolls, such as a California Roll, contain imitation as opposed to real crab,” Judge Anderson added. “A reasonable consumer does not, as Plaintiff argues, need the fact that a California Roll with ‘krab meat’ contains ‘imitation crab’ explicitly spelled out for them.”
The court went on to note that other dishes on P.F. Chang’s menu are described using the word “crab” where they contain actual crab. “A reasonable consumer would recognize that the use on P.F. Chang’s menu of ‘krab mix’ for some items and ‘crab’ for others, suggests ‘krab mix’ is not the same as ‘crab,’” the court wrote. “When a reasonable consumer walks into a P.F. Chang’s and orders an item with ‘krab mix,’ that consumer knows that the item does not consist of ‘crab.’”
The court dismissed the case with prejudice, finding that no amendment could keep the lawsuit afloat.
To read the order in Kang v. P.F. Chang’s China Bistro, Inc., click here.
Why it matters: The court found multiple reasons to dismiss the plaintiff’s false advertising action challenging P.F. Chang’s use of the term “krab mix,” from the fanciful name to the fact that the restaurant chain used the correct spelling for menu items that contained real crabmeat and not imitation crab.