FDA’s grated cheese regulation allows for the use of cellulose as an anticaking agent in cheese at the minimum amount necessary to prevent clumping.  As we reported in July (2019), the Illinois federal district court judge presiding over multidistrict litigation against grated parmesan companies Kraft Heinz Co. and SuperValu Inc. dismissed most of the claims alleging food fraud for excess cellulose in cheese marketed as “100% Grated Parmesan.”

In an April 14, 2020 brief on appeal, the plaintiffs argue the judge erroneously decided as a matter of law that consumers would not be misled by claims on the front of the package because they could check the ingredients label on the back of the package.  The plaintiffs assert that the possibility of consumer deception in this situation is a question of fact to be decided by the jury based on the evidence.

The district court judge did not allow an amended complaint asserting consumer fraud based on the use of cellulose as a filler because it contradicts the initial complaint that alleged the “100% Grated Parmesan” claim is misleading because consumers did not expect any ingredient except cheese (suggesting the consumers did not read the ingredient statement which discloses the presence of cellulose “to prevent caking”).  The newly filed brief does not squarely address whether arguments that cellulose is used as a filler can be made to support the dismissed claims that require showing reliance on misrepresentations in making the purchase.