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Lawsuit Over Wal-Mart 'Wild Salmon' Revived on Appeal by Dinesh Ramde, Associated Press Duluth News Tribune, October 20, 2005

A Wisconsin shopper who contends Wal-Mart engaged in deceptive advertising by offering farm-raised salmon as the more expensive wild version of the fish had his lawsuit revived by a state Court of Appeals Thursday.

The lawsuit filed by Miguel Gallego of Madison said he commonly purchased the fish believing it to be salmon caught in the wild because of its pink or reddish coloring, in contrast to the "gray, unappealing flesh" of farm-raised salmon.

He contended Wal-Mart deceived consumers by failing to indicate on the label that the salmon had artificial coloring, inducing people to pay more for lower quality fish.

The lawsuit was dismissed in Dane County Circuit Court, in part because one of the two laws under which Gallego sought protection only allows for monetary damages for false advertising of merchandise, not food.

In arguing against the appeal, Wal-Mart contended that if the statute was invalidated in the lawsuit, then the claim for monetary damages under that same statute must also be invalidated.

But the appeals court said damages can still be sought for violating rules that the state Department of Agriculture,

Trade and Consumer Protection sets on fair trade practices, according to Gallego's attorney David Bender.

He said the fact that the lawsuit can continue is a win for consumers, although the most Gallego could collect under the fair-trade-practices law would only be about double the amount he spent on the salmon over a couple of years.

Bender said the lawsuit was filed as a class action, and he will move that the judge certify it as such. That would mean it could apply to all consumers who bought the salmon, possibly thousands of people, he said.

"This whole lawsuit is about giving consumers choice," he said. "If products are properly labeled, then consumers can make an informed decision about what they're buying."

Attorney Naikang Tsao of the law firm of Foley & Lardner, who has represented Wal-Mart in the case, did not return calls from The Associated Press seeking comment.