A California federal court has denied Clif Bar & Co.’s motion to dismiss a putative class action alleging that its Clif bars contain high levels of sugar but are misleadingly marketed as healthful. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., entered August 20, 2019). The court disagreed with Clif’s argument that the plaintiff’s claims were preempted by federal laws on the display of nutritional information on food packaging, finding the provisions “of no moment here because plaintiffs are not challenging the nutrition information on the Clif bars’ label.” Further, the court declined to consider whether a “reasonable consumer would know that the challenged products contained added sugars” given the flavor names—including Chocolate Chip, Chocolate Brownie and Iced Oatmeal Cookie—because “the motion to dismiss stage is not the place to decide these questions of fact.”

“Clif is alleged to have marketed its bars using words and imagery designed to convey to consumers that the bars are ‘healthy or are conducive to good health and physical well-being,'” the court stated. “This marketing is alleged to have been deceptive because ‘as much as 37% of the calories in’ these products come from added sugar. [] The fact that this could theoretically be consistent with the [U.S. Food and Drug Administration]’s Daily Value and the [American Heart Association]’s daily recommendation for added sugars—if the consumer ate very little else that day—is hardly a basis for kicking these claims out at the motion to dismiss stage. Plaintiffs have laid out in painstaking and voluminous detail how this substantial percentage of added sugars in Clif’s products can contribute to excessive sugar consumption, which in turn has been linked to many diseases and detrimental health conditions. [] At this stage of the proceedings, the Court takes these allegations as true, and taken as such, the Court concludes that plaintiffs have stated a claim and, ‘given the opportunity, . . . could plausibly prove that a reasonable consumer would be deceived by’ the Clif bars’ packaging.”

About The Author

Avatar

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

Close