A federal court in New Jersey has, on the basis of the primary jurisdiction doctrine, halted proceedings alleging that General Mills misleads consumers by labeling its Kix® cereals with bioengineered corn as “made with all natural corn.” In re General Mills, Inc. Kix Cereal Litig., No. 12-249 (D.N.J., order entered November 1, 2013). Citing rulings from California and Colorado referring the matter to the U.S. Food and Drug Administration (FDA) for resolution, the court stated that “the issue of whether products may be labeled ‘Natural’ when they are made with bioengineered forms of corn falls within the expertise of the FDA and deference to the FDA’s regulatory authority is appropriate here.” Information about the Colorado litigation appears in Issue 492 of this Update. The court “administratively terminated” (i) the action “until such time as the FDA responds to this referral” or the referrals in the two other cases, and (ii) the…
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A federal court in California has granted a motion for final settlement approval in a nationwide class action alleging that Kellogg Co. falsely advertised its Frosted Mini-Wheats cereal products as a food that could help improve children’s attentiveness by 20 percent. Dennis v. Kellogg Co., No. 09-1786 (S.D. Cal., order entered September 10, 2013). Details about prior rulings in the case appear in Issue 483 of this Update. The court had previously given reluctant approval to the preliminary settlement, concerned that the class relief appeared to have diminished after remand from the Ninth Circuit, with attorney’s fees appearing to remain constant—the original settlement had a cash value of about $10.5 million with $2 million for attorney’s fees and claims administration; the revised settlement has a cash value of $4 million with $1.5-2 million reserved for attorney’s fees and claims administration. According to the court, the plaintiffs demonstrated that “the seemingly unchanged total…
The Yale Rudd Center for Food Policy & Obesity has published a study that criticizes cereal companies for allegedly promoting high-sugar products to children and portraying “unhealthy eating behaviors” in TV advertisements. Megan LoDolce, et al., “Sugar as Part of a Balanced Breakfast? What Cereal Advertisements Teach Children About Healthy Eating,” Journal of Health Communication, August 2013. According to the study’s authors, who reportedly analyzed 158 cereal advertisements that aired between 2008 and 2009 for messaging type, creative techniques and the eating behaviors modeled, 87 percent of ads viewed by children promoted high-sugar products and “were significantly more likely to convey unrealistic and contradictory messages about cereal attributes and healthy eating.” In particular, the analysis suggested that 91 percent of high-sugar cereal ads directed at children “ascribed extraordinary powers to these products,” while 67 percent “portrayed healthy and unhealthy eating behaviors.” “These findings also raise ethical and public health concerns about…
The Obesity Policy Coalition (OPC) has announced that the Australian Advertising Standards Board (ASB) has upheld its complaints alleging that TV commercials for Kellogg Co.’s LCM® cereal bars violated the Responsible Children’s Marketing Initiative (RCMI). According to OPC, the two advertisements in question were directed primarily toward children but failed to promote “a healthy dietary choice consistent with established scientific or Australian government standards,” healthy dietary habits or physical activity. In upholding the two complaints, ASB disagreed with Kellogg’s claims that the commercials were not aired during programming “where the proportion of children under 12 years of age is below 25 percent,” ruling instead that LCM® products “do not meet the Kellogg Global Nutrient Criteria for a healthier dietary choice” and therefore are “not permitted to be advertised to children under 12.” The board also found that although the commercials did not violate any provisions of the Australian Association of…
The Obesity Policy Coalition (OPC) recently announced that the Australian Advertising Standards Board (ASB) has upheld its complaint alleging that a TV commercial for Kellogg Co.’s Coco Pops® cereal violated the Responsible Children’s Marketing Initiative (RCMI). According to ASB’s case report, the advertisement under review featured a bowl of Coco Pops® playing “Marco Polo” in a cereal bowl, followed by an image of a child consuming the product and a voiceover stating, “Just like a chocolate milkshake only crunchy.” OPC claimed that this commercial violated RCMI by (i) communicating directly with children, (ii) advertising a product that does not “represent a healthy dietary choice consistent with established scientific or Australian government standards,” and (iii) failing to promote “healthy dietary habits or physical activity.” In particular, the coalition argued that the commercial not only imitated children’s voices and behavior in a bid to appeal “overwhelmingly to children,” but was broadcast during…
A federal court in California has rendered its reluctant approval of a preliminary settlement in class litigation against Kellogg Co., alleging that the company falsely advertised its cereal product as a food that could help improve children’s attentiveness by 20 percent. Dennis v. Kellogg Co., No. 09-1786 (S.D. Cal., order entered May 3, 2013). The matter had been remanded from the Ninth Circuit, which reversed an earlier settlement approval, finding that the cy pres distribution to organizations helping the indigent of funds remaining after the class claims were paid had not been properly assigned. Additional information about the Ninth Circuit’s decision appears in Issues 447 and 453 of this Update. The district court observes that the new designated cy pres recipients, the Consumers Union, Consumer Watchdog and Center for Science in the Public Interest, are appropriate as consumer-protection organizations, but expresses its dismay over the decrease in cash value to…
The European Food Safety Authority (EFSA) has issued “a call for acrylamide occurrence data in food and beverages intended for human consumption collected outside official controls.” Part of the agency’s ongoing assessment of acrylamide levels in food and beverages, the latest request for data focuses on the following product categories: (i) french fries sold as ready to eat; (ii) potato crisps; (iii) pre-cooked french fries and potato products for homecooking; (iv) soft bread; (v) breakfast cereals; (vi) biscuits, crackers, crisp bread, and similar products; (vii) coffee and coffee substitutes; (viii) baby foods, “other than processed cereal based foods”; (ix) “processed cereal-based foods for infants and young children”; and (x) other products, including muesli and porridge, pastry and cakes, and savory snacks. EFSA has specified that “the analytical method used for the quantitative determination of acrylamide… should achieve a LOQ [level of quantification] of 30 µm/kg for bread and foods for…
Yale University’s Rudd Center for Food Policy and Obesity and the Berkeley Media Studies Group have published a report criticizing top cereal manufacturers for allegedly targeting children with “sophisticated online marketing techniques.” Andrew Cheyne, et al., “Marketing Sugary Cereals to Children in the Digital Age: A Content Analysis of 17 Child-Targeted Websites,” Journal of Health Communication, February 2013. Focusing on 17 branded cereal websites between October 2008 and March 2009, the study’s authors reported that these sites employed a mix of techniques such as “advergames, videos, site registration, and viral marketing” to engage children in “lengthier and more sophisticated” interactions “than are possible with traditional, passive media such as television advertisements or product packaging.” In particular, the study relied on Internet traffic data to allegedly suggest that children spent more time on sites with higher levels of immersion, that is, “the most and most sophisticated techniques.” These high-immersion sites reportedly brought…
The U.K. Advertising Standards Authority (ASA) has upheld a complaint lodged by the Family and Parenting Institute (FPI) against Weetabix Ltd.’s product-branded app, concluding that the “WeetaKid” game, which prompted players to scan QR codes during game-play, “was persuasive and negative, and could lead children to understand that if they did not eat Weetabix they were failing in some way.” Focusing on several online games created by Weetabix, FPI apparently challenged whether (i) the WeetaKid app “exploited the credulity, loyalty, vulnerability or lack of experience of children by making them feel inferior or unpopular for not buying a product”; (ii) the WeetaKid app “included a direct exhortation to children to buy an advertised product”; (iii) advergames “on the Weetos and Nickelodeon websites were obviously identifiable as marketing communications”; and (iv) some of the advergames “advertised Weetos Bars, which would be classified as a product high in fat, salt or sugar (HFSS),…
The U.K. Advertising Standards Authority (ASA) has declined to uphold five complaints alleging that a TV commercial for Weetabix Ltd.’s Weetos breakfast cereal promoted “poor nutritional habits and an unhealthy lifestyle in children, because… it encouraged excessive consumption.” According to ASA, the ad in question showed a child eating Weetos for breakfast and later in the day as a snack, with the product’s tagline stating “FOR BREAKFAST AND BEYOND.” Rebutting the allegations, Weetabix reportedly said that “the ad was lighthearted but did not encourage excessive consumption” or poor nutritional habits, especially since the cereal advertised was “not a high fat, salt or sugar (HFSS) product as defined by the Food Standards Agency.” The company also argued that the portions shown in the commercial were consistent with marketing conventions and standards, as well as research indicating that consumers often ate Weetos for snacks and meals other than breakfast. “[Weetabix] considered that…
