December 4, 2021

Volume XI, Number 338

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December 03, 2021

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December 02, 2021

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9th Circuit Judge Asks What Amount of Added Sugar in a Product Makes the Product Unhealthy, a Question About Which Other Courts Have Ruled There is a Material Issue of Fact in Allowing Similar Cases to Proceed

Proposed class action lawsuits against Kellogg, Post, and General Mills, with a common lead plaintiff in the Northern District of California federal courts, allege that “healthy” and other nutrition-related claims on various breakfast cereals are false and misleading because the cereals contain high amounts of sugar.

As we previously reported, the judge certified three classes of consumers in the case against Kellogg, and the case may be settled if an agreed upon deal is reworked to make it acceptable to the court.

A class was also certified in the lawsuit against Post, and the case is proceeding to trial after the judge found there is a material issue of fact as to whether the products are unhealthy given the amount of added sugar.

The case against General Mills was dismissed, however, with the judge finding that plaintiffs could not possibly have been misled because the amount of sugar in the cereals is clearly disclosed on the product labels.

On June 12, 2020, in a hearing by a three-judge panel of an appeal of the dismissal of the lawsuit against General Mills, a recently confirmed judge, Danielle J. Hunsaker, asked a line of questions regarding what amount of added sugar in a product makes the product unhealthy.  The judge reportedly was not swayed by the plaintiffs’ argument that a “healthy” claim is not appropriate on any product with added sugar.

While many consumers continue to be concerned about sugar in the diet, there are complex issues surrounding the impact on health of added sugars in a single product and a product’s role in the total diet.  Meanwhile, as it works on redefining the “healthy” nutrient content claim for food labeling, FDA has not indicated how it will act on a citizens petition (discussed here) requesting a regulation to establish disqualifying levels of added sugar that would prohibit the use of a “healthy” claim.

© 2021 Keller and Heckman LLPNational Law Review, Volume X, Number 167
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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