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.