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A California federal court has rejected a settlement in a lawsuit that alleged Kellogg Sales Co. misled consumers by marketing its products as "healthy." Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., San Jose Div., entered February 20, 2020). The court found the settlement agreement to be invalid for several reasons: (i) "the release of the claims is overbroad"; (ii) the parties did not show that certification was appropriate; (iii) the parties failed "to provide sufficient information to justify a proposed reversion to Kellogg"; (iv) several forms associated with class participation contained errors; and (v) the "settlement structure is currently inconsistent with the fact that the voucher portion of the settlement constitutes a coupon settlement under the Class Action Fairness Act." Shook Partner Lindsey Heinz and Associate Elizabeth Fessler wrote an article for Law360 on the settlement when it was announced in late 2019, focusing on the lessons companies…

Several 2019 putative class actions targeted food products that purportedly misled consumers because they were marketed as "healthy" despite containing ingredients with debated health benefits. Coconut and coconut-derived products were a popular target for plaintiffs, who asserted that they were misled about the benefits associated with cooking with coconut oil or drinking coconut milk because coconut products frequently carry high levels of saturated fat. The same plaintiff sued Hain Celestial Group Inc. and Danone U.S. Inc., though the court found that Danone's marketing touting So Delicious Coconut Milk's "Maximum Calcium Absorption" benefit was "a permissible structure/function claim." "Healthy" confusion also extended to TGI Friday's Inc. potato skins—the "labeling deceives consumers into believing that they are receiving a healthier snack" because the potato skin is high in several nutrients, the plaintiffs allege—and sprouted grains, which Food for Life Baking Co. Inc. apparently marketed as nutritionally superior to comparable cereal products. Kellogg Sales…

The parties in a lawsuit alleging Kellogg Sales Co. misrepresented its cereals as healthy have reached an agreement that would require the company to pay $20 million in payments and make marketing changes valued at more than $11 million. Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., filed October 21, 2019). The lawsuit alleged that Kellogg's Smart Start, Raisin Bran, Krave, Crunchy Nut and Frosted Mini-Wheats cereals, along with its Nutri-Grain bars, were misleadingly marketed as healthy despite containing high levels of sugar. Under the settlement agreement, Kellogg will (i) remove or limit the use of "Heart Health" claims on Smart Start and Raisin Bran; (ii) use "healthy" as an implied nutrient content claim only; (iii) remove "lightly sweetened" from Frosted Mini-Wheats and Smart Start; (iv) refrain from using "No High Fructose Corn Syrup" or an equivalent phrase; and (v) use "wholesome," "nutritious" and "benefits" or equivalent words only…

Four consumers have filed a putative class action alleging that Kellogg Sales Co. misleadingly markets its products as promoting health and wellness despite containing added sugars. DiGregorio v. Kellogg Sales Co., No. 19-0632 (N.D.N.Y., filed May 28, 2019). The complaint details studies about the health effects of sugars on the human body and argues that the "high amounts of added sugar" in Kellogg's cereals and bars render regular consumption of the products as "likely to contribute to excess added sugar consumption, and, thereby, increased risk for and contraction of chronic disease." "Although Plaintiffs were the victims of Kellogg's longtime and general policy and practice with respect to the cereals and snack bars they purchased and the labels they saw, this Complaint and their claims are not so limited; rather, plaintiffs seek through this lawsuit to enjoin Kellogg's policy and practice generally, including but not necessarily limited to the products, labels,…

A consumer has filed a putative class action alleging that Danone US Inc. markets its So Delicious Coconut Milk to health-conscious consumers using health and wellness claims despite coconut milk’s level of saturated fat. Heymsfield v. Danone US Inc., No. 19-0589 (S.D. Cal., filed March 29, 2019). The plaintiff alleges that coconut milk “is unhealthy” because it “is essentially just coconut oil in water,” and coconut oil “is mainly saturated fat.” The complaint cites studies purportedly linking saturated fat consumption and elevated risks of cardiovascular disease. Danone allegedly markets itself as “a company ‘making food that’s good for you’ and products ‘that you can feel good about sipping, biting, pouring, scooping licking and chugging throughout your day,’” the complaint argues. In addition, “the Product was expressly promoted as being able to help consumers maintain healthy bones and prevent osteoporosis.” The complaint provides screenshots of the So Delicious website, which compares…

A consumer has filed a putative class action alleging that The Hain Celestial Group's Coconut Dream, "a coconut 'milk' style drink that is primarily coconut oil (or coconut oil and added sugar) in water," is marketed to appeal to health-conscious consumers despite being "basically saturated fat (or saturated fat and added sugar)." Andrade-Heymsfield v. Hain Celestial Grp. Inc., No. 19-0433 (S.D. Cal., filed March 5, 2019). The complaint alleges that Hain Celestial misleads consumers by representing Coconut Dream as healthful despite studies purportedly linking coconut-oil consumption and increased risks of cardiovascular heart disease. The plaintiff also alleges a link between sugar consumption and obesity, metabolic syndrome and diabetes. She seeks class certification, damages, corrective advertising, destruction of misleading materials and attorney's fees for alleged violations of California consumer-protection statutes.

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…

In a speech at the National Food Policy Conference in Washington, D.C., U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb reportedly summarized the agency’s plans, including (i) defining “healthy” for use with a food-labeling icon, (ii) implementing delayed updates to nutrition labels, and (iii) creating a strategy for reduction in salt consumption. Gottlieb reportedly said FDA will explore possible changes to nutrient-content claims. “People eat foods, not nutrients,” he is quoted as saying. “This is why we’re asking the important question of whether a modernized definition of ‘healthy’ should go beyond nutrients to better reflect dietary patterns and food groups, like whole grains, lowfat dairy, fruits and vegetables and healthy oils.” FDA will also propose short-term, voluntary targets for salt and sodium reduction from the current average daily intake of 3,400 milligrams to no more than 3,000 milligrams. “There remains no single more effective public health action related to…

Concerns about how or whether the term “healthy” should be used in food labeling and packaging prompted the U.S. Food and Drug Administration (FDA) to hold a public comment meeting on the issue on March 9, 2017. Current FDA regulations allow the use of the term “healthy,” as well as similar terms, as implied nutrient-­content claims. However, the criteria for use vary for different food categories, and the criteria themselves are linked to elements of the nutrition facts panel and serving size regulations—both of which have undergone significant changes in recent years. FDA also received a citizen petition in 2015 from Kind LLC, a producer and distributor of snack bars, requesting the agency amend its regulations defining the use of the term with respect to total fat intake and emphasizing whole foods and dietary patterns instead of specific nutrients. Accordingly, FDA’s 2016 publication of “Use of the Term ‘Healthy’ in…

A consumer has filed a putative class action against Dole Packaged Foods, LLC alleging the company’s products contain too much added sugar to be labeled as “rich in nutrients” or “healthy.” Amaya v. Dole Packaged Foods, LLC, No. 15-7734 (C.D. Cal., filed October 18, 2016). The complaint first details research connecting added sugar intake to detrimental health effects, including type 2 diabetes, cardiovascular disease and metabolic syndrome, then asserts that Dole’s products containing added sugar are misleadingly labeled. “Dole’s representations that Dole Fruit & Oatmeal contains ‘real fruit!’ and ‘No Trans Fat or Cholesterol,’ and is ‘a healthy . . . Breakfast’ are false, or even if literally true at least highly misleading, in light of the substantial added sugar in the Dole Fruit & Oatmeal products,” the plaintiff argues. The complaint also alleges the labeling claims are unlawful because (i) a statement indicating that the product is free of…

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