Cynics have long said that no good deed goes unpunished. Such can be the case with voluntary product recalls, which often engender litigation even by plaintiffs who have suffered no real injury and merely see an opportunity for a windfall. As we recently noted, recalls do not equate with product defects. However, plaintiffs — or their attorneys — act as though purchasing a recalled product is in itself a cause of action that justifies a lawsuit. A recent opinion from the Sixth Circuit offers yet another illustration why that reasoning is unsound and highlights how defendants can attack it early in a case. Specifically, because an allegation that the product a plaintiff purchased was recalled does not raise a plausible inference of injury in fact, a plaintiff lacks standing to assert a claim premised on a recall alone.
The named plaintiffs in Ward v. J.M. Smucker Co., No. 24-3387, 2025 WL 2613489 (6th Cir. Sept. 10, 2025), filed a putative class action in Ohio federal court alleging that they purchased peanut butter products from lots that the defendant had voluntarily recalled following a salmonella outbreak that had affected 16 people across 12 states. The plaintiffs did not, however, allege that any sampling or testing had revealed the presence of salmonella in the products they purchased. The defendant moved to dismiss the complaint for lack of Article III standing, arguing that the plaintiffs lacked an injury in fact, and the district court granted the motion.
On appeal, the plaintiffs first argued that they suffered economic injury and were placed at an increased risk of illness because the products they purchased were allegedly contaminated with salmonella and thus defective, depriving the plaintiffs the benefit of the bargain. Although those allegations could constitute an injury in fact if they were adequately pled, they were not. The premise of plaintiffs’ theory was that the peanut butter products were in fact contaminated. But the only supporting factual allegations in the complaint were that (1) the Food and Drug Administration (FDA) had identified 16 cases of salmonella infection linked to peanut butter products produced at the defendant’s factory, (2) the defendant had voluntarily recalled over 40 product lines, and (3) the plaintiffs had purchased products from those recalled lines. Crucially, the plaintiffs did not “offer any allegations suggesting sufficiently widespread or extensive contamination, such as allegations regarding sampling, testing, or other pertinent data or information.” Their reasoning was merely that they purchased peanut butter products that had been included in a recall. But, as the Sixth Circuit noted, “[a] product recall, by itself, does not suffice to raise a plausible inference of contamination.” Because the plaintiffs’ allegation of contamination lacked any factual support, they did not have standing to sue for their claims of economic injury and increased risk of illness.
The plaintiffs’ second theory of recovery fared no better. They argued that the products they purchased, even if not themselves contaminated, came from the same facility as other recalled products and must therefore have been prepared under unsanitary conditions that rendered the products adulterated. The defendant noted in opposition that the FDA had made no finding of adulteration and that the plaintiffs had not pled facts sufficient to plausibly allege adulteration, among other things. See 2024 WL 4453463 (Defendant’s Brief in Opposition). The Sixth Circuit did not reach the merits, however, because it found that the plaintiffs had waived the argument by failing to raise it in the district court. Concluding that the plaintiffs had proffered no legally cognizable theory of standing, the panel affirmed the district court’s dismissal of the case.
Interestingly, the defendant in Ward had a second argument against plaintiffs’ economic injury theory that the Sixth Circuit declined to reach. Because the defendant had instituted a robust replacement, reimbursement, and refund program as part of the voluntary recall, the defendant argued that its program already fully compensated the plaintiffs and that their claims of purely economic harm were therefore moot. See 2024 WL 4453463 (Defendant’s Brief). Plaintiffs had no real response, arguing merely that they sought damages for personal injuries from ingesting the peanut butter (which plaintiffs themselves did not claim to suffer, and which would have posed an obvious obstacle to class certification) and punitive damages (against a company that had voluntarily recalled the products and was fully reimbursing customers). See 2024 WL 4628177 (Plaintiffs’ Reply Brief).
The plaintiffs’ decision to file suit makes us worry that the cynics are right. At least the courts got it right, dismissing the putative class action at the pleadings stage and giving the defendant a relatively early win. Defendants who face similar allegations of injury that are premised solely on the fact of a recall will want to consider following the lead of the defendant in Ward and challenging the plaintiffs’ standing.
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