This article examines the fallout from Kellogg Co.’s recall of 28 million cereal boxes that, according to a public statement, contained “elevated levels of hydrocarbons, including methyl naphthalene, normally found in the paraffin wax and film in the liners.” The company voluntarily pulled the products after receiving complaints about an “off-flavor and smell,” which caused nausea and other gastrointestinal ailments in some consumers. Schor highlights the failure of Congress to pass reform measures that would allow the Food and Drug Administration (FDA) to issue mandatory recalls. “[T]he legislation sits in limbo in the upper chambers as industry groups chafe at Sen. Dianne Feinstein’s (D-Calif.) bid to ban another chemical with an unclear safety history, bisphenol A, from food containers,” she writes. Citing a recent Environmental Working Group (EWG) report that underscores the potential toxicity of methyl naphthalene, Schor raises questions about the overall safety of food packaging. EWG has “urged…
Tag Archives breakfast cereal
A federal court in California has dismissed a putative class action alleging that consumers were misled into believing that Cap’n Crunch’s Crunch Berries® cereal contained real berries or fruit. Werberl v. PepsiCo, Inc., No. 09-04456 (N.D. Cal., decided July 1, 2010). Noting that one law firm had filed unsuccessful suits in two other California federal district courts on behalf of two other class representatives, the court observed that the claims before it were “virtually identical.” Additional information about the dismissal of one of the other cases appears in issue 306 of this Update. According to the court, “no reasonable consumer would believe that Cap’n Crunch derives any nutritional value from berries” and any reliance on the use of the term “crunch berries” to imply “that real berries or fruit are contained in the cereal would neither be reasonable nor justifiable.” The court also found that leave to amend was unwarranted…
Following Kellogg Co.’s voluntary recall of some 28 million boxes of breakfast cereals for a “waxy” smell and flavor emitted from package liners, some have pointed to growing public concern over chemicals, such as bisphenol A, that are allegedly leaching into foods from packaging materials. The Kellogg recall involved an unknown substance added to the liners at the company’s Omaha, Nebraska, facility; it reportedly gave rise to complaints about nausea and vomiting, and the company warned parents that it could cause vomiting or diarrhea in sensitive children. Writing about the recall, The Daily Green discusses a 2009 study of legal food packaging substances that purportedly have endocrine disrupting properties. Among the food packaging chemicals with potential health effects are lead in glass, ortho-phenylphenol in beer and soda cans, perfluorinated compounds in paper packaging, and benzophenone in milk, juice and wine cartons. See The Associated Press, June 25, 2010; The Daily Green,…
The Federal Trade Commission (FTC) last week announced that Kellogg Co. has agreed to resolve an “investigation into questionable immunity-related claims for Rice Krispies cereal.” The agreement reopens a prior order involving Kellogg’s® Frosted Mini-Wheats®; the FTC will now require “substantiation for all health claims for any food” based on “competent and reliable scientific evidence,” defined as “tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons and are generally accepted in the profession to yield accurate and reliable results.” According to the concurring statement of Commissioner Julie Brill and FTC Chair Jon Leibowitz, the company was “developing its questionable Rice Krispies campaign last year [while] it was simultaneously negotiating with the FTC to resolve earlier allegations that the company had deceptively marketed Frosted Mini-Wheats as improving children’s attentiveness.” The concurring statement also notes, “What is particularly disconcerting to us is that at…
A putative class action has been filed against Kellogg USA alleging that, by calling its cereal “Froot” Loops® and including “pictures of brightly colored cereal made to resemble fruit” and actual fruit on product packaging, the company is deceiving the reasonable consumer who is led to believe the cereal contains fruit. Werbel v. Kellogg USA, No. 10-1660 (N.D. Cal., filed April 19, 2010). The named plaintiff relies on a Strategic Alliance for Healthy Food and Activity Environments study which purportedly revealed that this cereal, like many others, contains no fruit whatsoever despite packaging and advertising suggesting its presence. The plaintiff seeks to certify a class of California consumers who purchased the product in the four years preceding the lawsuit’s filing; he alleges unlawful, unfair and deceptive advertising and promotion in violation of the state’s Business & Professions Code , intentional misrepresentation, breach of implied warranties, and violations of the Consumers Legal…
A federal court in the District of Columbia has remanded to the D.C. Superior Court a lawsuit brought by the National Consumers League (NCL) against General Mills alleging that the company falsely misrepresents that Cheerios® “has drug-quality properties that would reduce total and ‘bad’ cholesterol levels when eaten.” Nat’l Consumers League v. General Mills, Inc., No. 09-01881 (D.D.C., decided January 15, 2010). The cereal maker removed the case to federal court claiming that it was removable either as a class action under the Class Action Fairness Act (CAFA) or under the court’s diversity jurisdiction. The NCL disclaimed Article III standing because it did not sustain any injury in fact, but was instead bringing the suit under the “private attorney general” provision of the D.C. Consumer Protection Procedures Act. This provision allows a person to bring an action on behalf of the general public to seek relief “from the use by…
The Canadian House of Commons’ Standing Committee on Health (HESA) recently heard testimony from Nestlé S.A. and Kellogg Co. representatives about dietary salt reduction. The representatives reportedly backed recent efforts to reduce salt levels in popular products, noting that breakfast cereals account for only 3 percent of the salt in the Canadian diets. Nestlé Director of Corporate Affairs Catherine O’Brien also stated that the company currently complies with the Heart and Stroke Foundation’s Health Check™ program, which has worked to remove 500,000 kilograms of salt from the food supply in the past 4 years. “We must balance the push of science with the pull of the market—consumers will simply not compromise on taste, therefore it must be a priority alongside improved health,” O’Brien was quoted as saying. According to media sources, some HESA members have expressed frustration with forthcoming federal salt reduction targets because they are not mandatory. “I frankly don’t…
A California resident has filed putative class claims against the Kellogg Co., alleging that it falsely advertises its Cocoa Krispies® cereal as a boost to children’s immunity. Kammula v. Kellogg Co., No. 09-08102 (C.D. Cal., filed November 5, 2009). According to the complaint, without the support of any “known clinical study,” Kellogg claims that the cereal “has been improved to include antioxidants and nutrients that your family needs to help them stay healthy.” The plaintiff alleges that this practice was intended “to profit from a growing trend in the manufacturing, advertising, and sales of ‘functional’ foods.” The complaint also alleges that “Defendants fail to adequately disclose that other ingredients, including but not limited to sugar, chocolate, high-fructose corn syrup and/or partially-hydrogenated oils, may not ‘help support’ a child’s immunity.” The named plaintiff seeks to certify a class of California residents who purchased Cocoa Krispies® since November 4, 2005, alleging false…
San Francisco’s city attorney has written to the Kellogg Co. to express “serious concerns about Kellogg’s advertising of sugary children’s breakfast cereals with the claims, ‘Now Helps Support Your Child’s Immunity’ on the front of the package.” The company is apparently promoting its Cocoa Krispies® cereal with this claim. The letter contends that “[t]he Immunity Claims may also mislead parents into believing that serving this sugary cereal will actually boost their child’s immunity, leaving parents less likely to take more productive steps to protect their children’s health.” City Attorney Dennis Herrera also states, “At a time when parents are increasingly worried about the spread of the H1N1 virus (‘swine flu’), it is vitally important that parents receive accurate information about what they can do to protect their children’s health.” He suggests that the company may be violating California’s Unfair Competition Law and that it may be undermining “critical public health efforts…
The food industry has reportedly halted a new front-of-packaging (FOP) labeling campaign pending Food and Drug Administration (FDA) guidance. According to an October 23, 2009, press release, the Smart Choices Program™ voluntarily postponed active operations after FDA Commissioner Margaret Hamburg indicated “that the agency intends to develop standardized criteria on which future front-of-package nutrition or shelf labeling will be based.” While awaiting FDA guidance, the program will no longer enroll new companies or encourage use of the logo. “We welcome the FDA’s interest in developing uniform front-of-package and shelf-labeling criteria,” said program chair Mike Hughes. “The Smart Choices Program shares that exact goal, and was designed to provide a voluntary front-of-package labeling program that could promote informed food choices and help consumers construct healthier diets. We continue to believe the Smart Choices Program is an important step in the right direction.” See Reuters, October 23, 2009; FoodNavigator-USA.com and UPI.com, October…
