False Advertising Case Against Cereal Maker Dismissed with Leave to Amend

A federal court in California has reportedly dismissed without prejudice
putative class claims filed against General Mills Inc. alleging that the company
falsely conveyed to consumers that its Total Blueberry Pomegranate® cereal
product contained real fruit. Dvora v. Gen. Mills Inc., No. 11-1074 (C.D. Cal., dismissed May 16, 2011). According to a news source, the court
determined that the plaintiff’s state-law claims were preempted by federal
product-labeling laws that allow a manufacturer to use a fruit’s name and
image to describe a flavor even if the product contains no fruit. The claims
were apparently based on allegations that the product was falsely labeled
“naturally and artificially flavored” and the packaging was misleading.

The court disagreed, saying, “If you look at the ingredients table, blueberry
and pomegranate aren’t there. So I don’t understand how a reasonable
consumer is somehow tricked into thinking it contains blueberry and
pomegranate.” The court also said in its tentative ruling, “The cereal package includes a picture of the cereal containing ‘clusters.’ Although—with all respect to plaintiff—it is difficult to imagine anyone mistaking said clusters
for actual blueberries or pomegranate seeds.” While the plaintiff sought to
convince the court that the claims were about false advertising and unfair
competition, the court maintained that this was a “flavors case,” and that the
company complied with federal flavoring regulations. The plaintiff will have
until June 7, 2011, to amend his complaint. See Law360, May 16, 2011.