Lawsuit accusing Whole Foods of overcharging is revived-U.S. appeals court

NEW YORK, June 2 (Reuters) - A federal appeals court on Friday ordered Whole Foods Market Inc to face a proposed class-action lawsuit accusing it of overcharging shoppers in New York City by overstating the weight of pre-packaged food in its supermarkets.

The 2nd U.S. Circuit Court of Appeals in Manhattan said a lower court judge had erred in concluding that the plaintiff Sean John, a frequent purchaser of pre-packaged cheese and cupcakes, had no right to sue because he could not show that Whole Foods overcharged him for a specific purchase.

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John sued one month after New York City's Department of Consumer Affairs in June 2015 said all 80 prepackaged foods it tested from Whole Foods had mislabeled weights, and 89 percent failed to meet federal labeling standards. Overcharges ranged from 80 cents for pecan panko to $14.84 for coconut shrimp.

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Prices at Whole Foods vs. Trader Joe's
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Prices at Whole Foods vs. Trader Joe's

Red peppers

Trader Joe's: $0.99 each 

Whole Foods: $3.99 per pound

One medium-sized red bell pepper weighed nearly one pound, so peppers were far more expensive at Whole Foods. 

Organic avocados

Trader Joe's: $2.29 each 

Whole Foods: $2.79 each 

Organic strawberries

Trader Joe's: $5.99 for 16 ounces

Whole Foods: $5.99 for 16 ounces

Strawberries were expensive across the board.

Green seedless grapes

Trader Joe's: $3.99 for 20 ounces, or $3.19 for one pound

Whole Foods: $2.99 for one pound (on sale from $3.99 per pound)

Organic bananas

Trader Joe's: $0.29 each

Whole Foods: $0.99 per pound

Three medium-sized bananas weighed around a pound, so this was a close call.

Multigrain bread

Trader Joe's: $2.99 for 24 ounces

Whole Foods: $3.49 for 24 ounces

Buying two loaves of bread at Whole Foods would have brought the cost down to a comparable $3 per loaf. 

White bread

Trader Joe's: $2.69 for 24 ounces

Whole Foods: $3.49 for 24 ounces

There was a big difference, though the white bread at Whole Foods was organic.

Ground beef

Trader Joe's: $4.99 per pound

Whole Foods: $9.99 per pound

Again, the cheapest option at Whole Foods was organic. 

Ground turkey

Trader Joe's: $3.99 per pound

Whole Foods: $7.99 per pound

Uncured sliced bacon

Trader Joe's: $5.49 for 12 ounces

Whole Foods: $4.99 for 12 ounces

Whole Foods is the winner here and there was a good selection on sale. 

Organic white potatoes

Trader Joe's: $1.oo per pound

Whole Foods: $1.20 per pound

Organic white tortilla chips

Trader Joe's: $2.69 for 16 ounces

Whole Foods: $2.99 for 16 ounces

Vanilla ice cream

Trader Joe's: $3.99 for 32 fluid ounces

Whole Foods: $4.99 for 32 fluid ounces (organic)

Trader Joe's ice cream was cheaper but the 365 version at Whole Foods was organic. 

Parmesan 

Trader Joe's: $5.38 for one pound

Whole Foods: $12.77 for one pound

Organic mayonnaise

Trader Joe's: $3.69 for 16 ounces

Whole Foods: $3.69 for 16 ounces

A dead heat!

Extra virgin olive oil

Trader Joe's: $6.99 for 33.8 fluid ounces

Whole Foods: $9.99 for 33.8 fluid ounces

Organic marinara sauce

Trader Joe's: $2.49 for 25 ounces

Whole Foods: $2.99 for 25 ounces

Organic spaghetti

Trader Joe's: $1.29 for 16 ounces

Whole Foods: $1.49 for 16 ounces

Chili flakes

Trader Joe's: $1.99 for 1.3 ounces

Whole Foods: $3.99 for 0.99 ounces

Dried basil

Trader Joe's: $1.99 for 0.3 ounces

Whole Foods: $2.99 for 0.53 ounces

Organic crunchy peanut butter

Trader Joe's: $3.49 for 16 ounces

Whole Foods: $3.99 for 16 ounces

Organic milk

Trader Joe's: $3.49 for a half gallon

Whole Foods: $2.39 for a half gallon

The milk at Trader Joe's is organic.

Organic plain yogurt

Trader Joe's: $3.99 for 32 ounces

Whole Foods: $3.39 for 32 ounces

Whoa! A great deal on organic plain yogurt at Whole Foods. 

Frozen peas

Trader Joe's: $1.29 for 16 ounces

Whole Foods: $1.39 for 16 ounces

Almond Breeze almond milk

Trader Joe's: $1.99 for 32.8 ounces

Whole Foods: $2.19 for 32.8 ounces

Both stores stock Almond Breeze almond milk, we did a direct comparison of the product: Trader Joe's was $0.20 cheaper.

Hummus

Trader Joe's: $1.99 for 8 ounces

Whole Foods: $2.19 for 8 ounces

Eggs

Trader Joe's: $2.69 for a dozen cage-free large eggs

Whole Foods: $4.39 for a dozen organic large eggs

Note that Whole Foods' eggs are organic and Trader Joe's are cage free. 

Rolled oats

Trader Joe's: $3.99 for 32 ounces, or $2.00 per pound

Whole Foods: $3.19 for 18 ounces, or $2.84 per pound

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Whole Foods, based in Austin, Texas, agreed in December to pay $500,000 to settle with New York City, following apologies from co-chief executives, John Mackey and Walter Robb. The probe drew national headlines.

Writing for the appeals court, Circuit Judge Raymond Lohier said John may face "significant evidentiary obstacles" but had legal standing to sue, even if the Manhattan resident could not show that any of the food items he claimed to buy once or twice a month were mislabeled.

"According to the DCA's investigation, Whole Foods packages of cheese and cupcakes were systematically and routinely mislabeled and overpriced, and John regularly purchased Whole Foods packages of cheese and cupcakes throughout the relevant period," Lohier wrote.

"Taking these allegations as true and drawing all reasonable inferences in his favor, it is plausible that John overpaid for at least one product," the judge added.

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11 ways to save at whole foods
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11 ways to save at whole foods

Be wary of dairy in glass containers

If you grab milk or cream from a glass bottle, you'll be charged for the price of the bottle in addition to its contents. If you must purchase the glass bottle version of the product, be sure to bring it back to Whole Foods next time you're shopping and customer service will give you a voucher.

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Bring your own bags

Whole Foods will offer you a five to 10 cent discount from your total for bringing your own bag.

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Don’t buy Whole Foods pre-packaged containers of fruits and veggies

You'll end up paying way more and receiving way less. Always opt for the full version of the fruit or vegetable and prepare it yourself.

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Take advantage of bulk meat deals

Deals on bulk amounts of certain meats vary from location to location. Ask the butcher about what bulk meat deals your local Whole Foods is offering.

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Look for bright yellow tags

Special deals (that only last for a few days or a week) are unadvertised outside of the store but can be found while shopping by their bright yellow tags.

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Check out specialty online coupons

You can enter your local Whole Foods store online and print off coupons and deals that are specific to your local Whole Foods--some coupons are valid for up to three months. 

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Buy cases of products you like and save 10 percent

Whether it's protein bars or wine, Whole Foods will discount a case-sized version of your product for 10 percent, a well worth it investment if it's a product your consuming often.

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Shop the Friday-only sales

Stores will offer specialty Friday-only sales that can offer you major one-day savings.

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Shop the Whole Foods 365 value brand

The store's value brand is extremely well-priced and will offer you the healthiest version of discounted products, as there will be a significantly lower amount of preservatives than other discount brands, according to Whole Foods.

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"Like" your local Whole Foods' Facebook page for news on special deals and discounts

Deals will vary from store to store and are always advertised through social media.

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Bring your own containers when shopping the bulk section

When weighing your bulk purchase at checkout, Whole Foods will subtract the price of the weight of your container if you bring your own from home instead of using the ones provided in the store.

Photo credit: Facebook

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The case was returned to U.S. District Judge Paul Engelmayer in Manhattan. He had dismissed the lawsuit in March 2016.

Whole Foods said in an email it was disappointed with the decision, and "will continue to vigorously defend against the plaintiff's meritless claims."

A lawyer for John did not immediately respond to requests for comment.

John sought to represent everyone who bought pre-packaged goods at Whole Foods stores in New York City after June 24, 2010.

The case is John v Whole Foods Market Group Inc, 2nd U.S. Circuit Court of Appeals, No. 16-986. (Editing by Bernadette Baum)

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