In a proposed class action lawsuit filed in (no surprise) California on October 14, 2011, General Mills is accused, under various state law causes of action, of “misleading consumers about the nutritional and health qualities of its fruit snacks, namely Fruit Roll-Ups® and Fruit by the Foot® as well as other similar products.” Notably, plaintiff is represented, in part, by counsel from the Center for Science in the Public Interest. According to the Complaint:
[General Mills] made misleading statements that its Products were nutritious, healthful to consume, and better than similar fruit snacks.
In fact, Defendant’s Fruit Snacks contained trans fat, added sugars, and artificial food dyes; lacked significant amounts of real, natural fruit; and had no dietary fiber. Thus, although the Products were marketed as being healthful and nutritious for children and adults alike, selling these Fruit Snacks was little better than giving candy to children.
The alleged “deception” of “conveying positive health benefits” all related to Front-of-Package (“FOP”) claims – specifically: (1) FRUIT FLAVORED SNACKS; (2) NATURALLY FLAVORED; (3) GOOD SOURCE OF VITAMIN C; (4) [LOW NUMBER] of CALORIES; (5) LOW FAT; and (6) GLUTEN FREE.
On February 17, 2012, General Mills fought back by filing a motion to dismiss the complaint as a matter of law that made the following arguments. First, “nearly all of the statements [plaintiff] attacks are truthful and accurate labeling claims that General Mills is authorized to make under the Federal Food, Drug & Cosmetic Act … and accompanying regulations. As a result, [plaintiff's] claims that these statements are deceptive are preempted by the NLEA, 21 U.S.C. § 343-1(a), an express preemption provision that prohibits any attempt to impose state-based labeling requirements that are ‘not identical’ to the requirements of federal law.” Second, “the isolated statements Plaintiff complains of that are not subject to express NLEA preemption (“Made With Real Fruit” and “Gluten Free”) are nonetheless non-actionable because they are not likely to deceive a reasonable consumer.”
This case highlights the growing tension between factually accurate nutrient content claims that comply with FDA regulations and the concern of groups like CSPI that such claims may nonetheless mislead consumers by suggesting that a product is, as a whole, “healthy.”
Any ruling in favor of these arguments at this stage would be very significant and a blow to similar class action suits. See General Mills’ motion to dismiss here.
More to follow, but here’s a summary of the recent flood of class action lawsuits alleging that certain “all natural” claims are misleading and deceptive. Expect more to follow.
- Frito-Lay (filed January 30, 2012, in New York and December 14, 2011, in California): Frito-Lay is accused in two separate suits of marketing products as “all natural” when they included corn and vegetable oils made from genetically modified plants and organisms (“GMOs”). According to plaintiffs, “[t]he reasonable consumer assumes that seeds created by swapping genetic material across species to exhibit traits not naturally theirs are not ‘all natural.’”
- Tropicana Products, Inc. (filed January 6, 2012): Suit claims that Tropicana’s not-from-concentrate orange juice is misleadingly labeled as “100% pure and natural” because it “undergoes extensive processing which includes the addition of aromas and flavors,” which “changes the essential nature” of the juice into a product“ engineered in laboratories” with a “shelf-life of more than two months.”
- King Arthur Flour (filed November 14, 2011): Alleges that King Arthur Flour markets at least 64 products with “All Natural” claims that include “several synthetic ingredients… including ascorbic acid, disodium phosphate, potassium carbonate and sodium acid pyrophosphate.”
- ConAgra (filed November 8, 2011): ConAgra is accused of “engaging in a misleading advertising campaign in an effort to deceive customers into purchasing … [Wesson Canola Oil, Vegetable Oil, Corn Oil, and Best Blend] labeled and advertised as ‘100% Natural’” when they allegedly contain genetically modified ingredients.
- Kashi (multiple suits filed in August and September of 2011): Alleges that a number of Kashi products were “falsely represented” as “all natural” and containing “nothing artificial” when they actually included “synthetic and unnaturally processed ingredients, including sodium molybdate, phytonadione, sodium selenite, magnesium phosphate, niacinamide, calcium carbonate, calcium phosphate, calcium pantothenate, pyridoxine … and other substances that have been declared to be synthetic substances by federal regulations.”
- General Mills (filed October 28, 2011): Reference to Kix cereal as including “all-natural whole grain corn” alleged to be false and misleading because it allegedly included genetically modified corn.
- Ben & Jerry’s Homemade, Inc. (filed on September 29, 2010): Alleges that consumers were misled who purchased certain Ben & Jerry’s “all natural” ice cream products containing“alkalized cocoa processed with potassium carbonate, a man made, synthetic ingredient.”25 The lawsuit continues even though Ben & Jerry’s agreed to remove the “all natural” labeling from all of its ice cream and frozen yogurt products.
- AriZona Beverages (filed on March 3, 2010): Alleges that several AriZona-brand beverages were marketed as “100% Natural” and “100% All Natural” but contained high fructose corn syrup and citric acid, which were alleged to be non-natural substances. Consumers complained that because of the labeling used on AriZona drinks, they “received something less than and different from what was promised and bargained for— a product that was not, in fact, all natural.”