May 23, 2022

Volume XII, Number 143

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May 23, 2022

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Class-Action Against Whole Foods Dismissed

  • class-action lawsuit filed by Spencer Sheehan which alleged that Whole Foods deceptively labeled its “Oats & Flax Instant Oatmeal” (sold under the 365 Everyday Value brand) has been dismissed without prejudice.

  • The lawsuit brought a variety of causes of action against Whole Foods based on alleged consumer deception related to (1) the labeling of an ingredient as “dehydrated cane juice solids” instead of sugar and (2) the whole grain content of the oatmeal.

  • Specifically, in regard to the first alleged deception, Plaintiffs argued that they purchased the product believing that the “dehydrated cane juice” referred to a fruit juice ingredient and not sugar. The front of the package contained a picture of a bowl of oatmeal with a few raspberries sprinkled on top and lying to the side of the bowl. The Court rejected this claim because there was no representation regarding the sugar content of the oatmeal on the front box (e.g., sugar free) and because any consumers that did not recognize the ingredient listing of “dehydrated cane juice solids” as synonymous with sugar could readily view the sugar content of the product on the adjacent and much larger nutrition facts panel. The court also stated that there was no reason to believe that a reasonable consumer would interpret cane juice to mean fruit juice and that to the extent that the raspberries on the front cover implied that the product contained real raspberries, this notion would be quickly dispelled by the ingredient list.

  • Plaintiffs also alleged that the statement “100% Whole Grain – 18g or more per serving” on the front display panel was misleading because it implied that the product was entirely made up of whole grains. The court dismissed this allegation as frivolous because it was inconsistent with the other allegation (a product containing sugar cannot be completely whole grain), the product name included flax, which is an oilseed and not a grain, and the “18 g or more per serving” clarified that the 100% whole grain content referred to just that portion of the product. The case is another reminder that courts will view allegations of consumer deception in the context of all the information available to consumers.

© 2022 Keller and Heckman LLPNational Law Review, Volume XI, Number 355
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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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