Court Dismisses Whole Foods Yogurt MDL for Reliance on Consumer Reports Data

A Texas federal court has dismissed multidistrict litigation (MDL)
alleging that Whole Foods Market Inc. lists incorrect amounts of sugar
on its yogurt labels, concluding the Consumer Reports data relied on by
the plaintiffs did not meet federal standards. In re Whole Foods Mkt. Inc.
Greek Yogurt Mktg. & Sales Practices Litig., MDL No. 2588 (W.D. Tex.,
Austin Div., order entered February 16, 2016). The consumers claimed
Whole Foods’ store-brand yogurt contains 11.4 grams of sugar per
serving, while the listed sugar content is 2 grams. Details about some of
the 11 consolidated lawsuits appear in Issues 533 and 534 of this Update.

Whole Foods argued that the consumers’ claims were preempted by
the federal Food, Drug, and Cosmetic Act (FDCA) because the scientific
testing techniques used by Consumer Reports failed to comply with the
testing methodology determined by the U.S. Food and Drug Administration.
The court agreed, noting that the plaintiffs “expressly plead that
Consumer Reports used a different testing methodology” of analyzing
six samples rather than the mandated “composite of twelve subsamples
taken from twelve randomly chosen shipping cases.” Accordingly, the
court found that all state law claims were preempted because the plaintiffs
sought to impose liability inconsistent with the FDCA and dismissed
all claims.

Issue 595