August 18, 2019

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CA Judge Certifies Class in Kellogg False Advertising Cereal Lawsuit

On August 17, 2018, a California federal judge certified three classes of consumers who allege that Kellogg falsely advertises its Raisin Bran, Frosted Mini-Wheats, and Smart Start cereals as healthy. The 51-page order granting the motion for class certification found claims that Kellogg misled consumers about the sugar contents of its cereals can be resolved on a class-wide basis. However, the judge refused to certify a similar class of consumers who bought Nutri-Grain breakfast bars because the court would have to engage in individualized inquiries to determine which members of the class were injured.

The lawsuit was brought against Kellogg in August 2016 by plaintiff Stephen Hadley. In his complaint, Hadley points to various phrases on product labels as evidence of false advertising. For example, the Frosted Mini-Wheats and Smart Start labels say “lightly sweetened” and the Nutri-Grain bars say “wholesome goodness,” which Hadley argues implies that the products are low in sugar, even though they contain 18 to 40 percent added sugar. Other phrases at issue include “nutritious,” “essential nutrients,” and “wholesome,” however claims about phrases like “unbelievably nutritious” and “positively nutritious” were deemed as puffery and dismissed by the court in August 2017.

Notably, Hadley is also a co-plaintiff in a similar false advertising lawsuit against General Mills. That lawsuit challenges the labeling on 52 kinds of General Mills breakfast cereals with allegedly high sugar content. General Mills has argued that the label claims at issue are implied nutrient content claims that are permitted by the FDA. As of September 2017, the court had partly granted General Mills’ second of three dismissal bids, and had given the plaintiffs an opportunity to file an amended complaint for the second time.

Over the past few years consumers have shown increased concern about sugar in the diet and nutrition-related claims. As evidenced by these lawsuits, added sugar has emerged as a hot area for litigation, as has the word “nutritious,” which is often argued as a code-word for healthy and is at the center of many false advertising lawsuits.

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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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