A California federal court has granted certification to buyers of Kellogg Co.’s Raisin Bran, Frosted Mini-Wheats and Smart Start who allege they were misled about the health benefits of the products because they contain added sugar. Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., San Jose Div., entered August 17, 2018). The complaint also contained an allegation about Nutri-Grain bars, but the court declined to certify that class. Kellogg argued that the plaintiffs did not meet the predominance standards for certification, asserting that most consumers did not see the challenged phrases “lightly sweetened” and “wholesome goodness” on the product packaging and further that “the health impact of consuming added sugar—and thus the alleged falsity of the challenged statements—differs for each consumer.” The court agreed as to the “wholesome goodness” phrase on Nutri-Grain bars packaging but disagreed that most consumers would not have seen “lightly sweetened” phrasing based on its…
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A woman has filed a lawsuit alleging that she contracted Salmonella Mbandaka after consuming Kellogg Co.'s Honey Smacks cereal. Lemieux v. Kellogg Co., No. 18-0682 (W.D. Mich., filed June 20, 2018). The infection is apparently part of an outbreak of Salmonella that began in March 2018 that has infected 73 people in 31 states. The plaintiff alleges that after eating Honey Smacks every morning for two weeks, she "lost her appetite entirely," experienced "agonizing abdominal craps" and had a fever of 104 degrees. For allegations of strict liability, negligence and breach of warranty, the plaintiff seeks damages of more than $25,000 and attorney's fees.
A California federal court has dismissed with prejudice a putative consolidated class action alleging that Quaker Oats Co. falsely advertised its instant oatmeal as containing maple syrup, finding that the plaintiffs were unable to allege conduct not preempted by the federal Food, Drug and Cosmetic Act (FDCA). In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litig., No. 16-1442 (C.D. Cal., entered March 8, 2018). The court previously found that flavoring claims were preempted by the FDCA and the Nutritional Labeling and Education Act, but the court also allowed the plaintiffs to replead so it could consider preemption from the standpoint of maple as a sweetener. In its reconsideration, the court noted that, “to evade preemption at this stage, Plaintiffs would need to either allege that the Products’ labels violate the FDA’s sweetener requirements or raise claims that are not addressed by federal law.” Because the amended complaint did…
The U.S. Food and Drug Administration (FDA) has warned Nashoba Brook Bakery that it has misbranded its granola by listing “Love” as one of its ingredients. The warning letter informed the company that “'love' is not a common or usual name of an ingredient, and is considered to be intervening material because it is not part of the common or usual name of the ingredient.” “Intervening material” refers to information that is not required in FDA labeling and can distract from required content. The letter also cited the bakery for health and sanitary violations as well as misbranding violations for whole-wheat products that contain corn meal.
A California federal court will allow to proceed a suit alleging that Kellogg’s breakfast cereals and bars are unhealthy because of excess added sugars, finding that the labeling and packaging of 24 named products “contain at least one statement that is not preempted, non-misleading or puffery as a matter of law.” Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., entered August 10, 2017). The court rejected Kellogg’s argument that the company accurately disclosed the ingredients of its products and complied with U.S. Food and Drug Administration (FDA) labeling guidelines. The court also found that because FDA “expressly decided” not to set a level for sugar that would disqualify a product from making health or nutrient-content claims, any allegation that Kellogg’s product labeling was misleading because of a certain amount of added sugar was preempted by the Food, Drug and Cosmetic Act. However, the court refused to preempt a claim…
A consumer has filed a putative class action alleging Kellogg Co.’s Special K® Fruit & Yogurt cereal is misleadingly labeled with pictures of strawberries and blackberries despite that dried apples are listed as the only fruit contained in the product. George v. Kellogg Co., No. 16-1887 (E.D. Mo., removed to federal court December 1, 2016). Asserting that she paid a premium price for the product believing it to contain strawberries and blackberries, the plaintiff argues that the labeling violates the Federal Food, Drug, and Cosmetic Act and its labeling regulations. For an alleged violation of the Missouri Merchandising Practices Act and unjust enrichment, she seeks class certification, damages and attorney’s fees. Issue 625
A New Jersey federal court has transferred to California a lawsuit alleging that The Quaker Oats Co. misleads consumers with the packaging of its Maple & Brown Sugar oatmeal product because it does not contain maple syrup or maple sugar. Gates v. Quaker Oats Co., No. 16-1944 (D.N.J., order entered August 3, 2016). The complaint “makes essentially identical allegations against Quaker” as three other putative class actions pending in other federal courts, the court notes, including the first-filed case in California. The Judicial Panel on Multidistrict Litigation denied an Illinois plaintiff’s request to consolidate the cases into multidistrict litigation, but the panel suggested that the other parties transfer their lawsuits to California to streamline the process. Quaker moved to transfer the case from New Jersey to California, and the plaintiff did not oppose; accordingly, the court granted the motion to transfer. Issue 614
The U.K. Advertising Standards Authority (ASA) has upheld two complaints alleging that advertisements touting Kellogg Co.’s Special K® products as “full of goodness” and “nutritious” violated broadcast (BCAP) and non-broadcast (CAP) advertising codes for food, food supplements and associated health claims. The complaints targeted a TV ad for Special K® porridge that included supported health claim related to vitamin B2, as well as website claims regarding the product’s “unique Nutri K™ recipe.” According to ASA, the agency “shared Kellogg’s view that the claim ‘full of goodness’ was a reference to a general, non-specific health benefit of the product and as such, we agreed that Kellogg was required to accompany it with a specific authorized health claim.” But because the authorized vitamin B2 claim did not immediately follow the general health claim, ASA found the ad in breach of BCAP Code Rule 13.4.3. The watchdog also felt that the website advertisement…
The U.S. Food and Drug Administration (FDA) has issued draft guidance proposing an action level of 100 µg/kg for inorganic arsenic in rice cereals for infants. The agency has also released supporting documentation for its proposal as well as a risk assessment that includes (i) “a quantitative estimate of lung and bladder cancer risk from long-term exposure to these products and the predicted impact of various scenarios to reduce the risk,” and (ii) “a qualitative assessment of certain potential non-cancer risks, in certain susceptible life stages.” “We conclude that the 100 µg/kg action level will help protect the public health and is achievable with the use of current good manufacturing practice, but we especially welcome comments and information bearing on the achievability and public health benefits and risks of 100 µg/kg, as compared with other potential action levels (including no action level),” states FDA, which will consider comments submitted by…
A California resident has filed a putative class action alleging Quaker Oats Co. mislabels its instant oatmeal as containing maple syrup despite containing no syrup or maple sugar. Eisenlord v. Quaker Oats Co., No. 16-1442 (C.D. Cal., filed March 1, 2016). Citing a letter from the Vermont Maple Sugar Makers’ Association to the U.S. Food and Drug Administration, the complaint asserts that adding maple sugar to a product can allow a company to charge a premium price. The plaintiff argues that he relied on the name of the product and a prominent image of maple syrup on the packaging to believe that the oatmeal contained maple syrup, and had he known “that the product did not contain maple syrup or maple sugar as an ingredient, he would not have purchased it.” For allegations of fraudulent inducement and violations of California’s consumer-protection statute, the plaintiff seeks class certification, damages, an injunction…
