The lawsuits*, filed in the northern district of California by Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger of the law office of Jack Fitzgerald PC in late August, accuse the defendants of falsely advertising their cereals as healthy and nutritious when they are also high in sugar, excessive amounts of which, they claim, are linked to everything from heart disease to type 2 diabetes.
In motions to dismiss the lawsuits filed on October 31, however, the defendants note that their labels comply with both the letter and the spirit of the law, and that there is no federal regulation that disqualifies firms from describing a product as ‘healthy,’ or ‘nutritious’ based on its sugar content.
And even if there is disagreement over what's 'healthy' – the FDA is currently conducting a probe into the criteria underpinning ‘healthy’ claims – this is grounds to stay the cases on primary jurisdiction grounds, not to give them the green light, notes General Mills (eg. let’s leave this for the FDA – not the courts - to decide).
“If dismissal is not entered now, then at a minimum the action should be stayed until the FDA provides further guidance.”
Plaintiffs ask the court to ignore the FDA and redo its added sugar evaluation
Meanwhile, the plaintiffs’ argument – that anything that contributes more than 5% of calories from [total] sugar is a ‘high-sugar’ food, and therefore dangerous to health - does not reflect the views of the FDA, which recently established a DRV of 10% of total calories from added sugar, explains General Mills:
“The complaint provides no basis for this ‘5% of calories from sugar’ standard, which would render ‘unhealthy,’ foods like apples (10% of calories from sugar), grapes (16%), and bananas (12%).
“Plaintiffs ask for this court to ignore the FDA and redo its added sugar evaluation, to supervise General Mills’ food labeling, and—in disregard of Congress’ stated goal of national uniformity for food labeling—to set new and different California-specific rules for added sugar.”
Products contain less than a third of the FDA's DV for added sugar
Post Holdings, meanwhile, slammed the lawsuits as an “ill-advised attempt to make an end-run around FDA’s carefully considered rules governing added sugar disclosures,” while Kellogg observed that no reasonable consumer would think the amounts of sugar in its cereals are “excessive.”
Indeed, it says, the Kellogg breakfast products cited in the lawsuit "contain on average significantly less than a third of the FDA’s daily recommended value for added sugar (50g). And since breakfast is only one of three meals that people typically eat, plaintiff’s conclusory allegation that the products contain ‘excessive’ added sugar is implausible.”
Kellogg has never advertised products as ‘low sugar’ or ‘reduced sugar.’ Nor has it hidden the sugar content
Most importantly, says Kellogg, consumers aren’t stupid, and its labeling does not state or imply that the products are low in sugar: “Kellogg has never advertised these breakfast products as ‘low sugar’ or ‘reduced sugar.’ Nor has it hidden the sugar content.
"To the contrary, as every consumer knows, the products’ sugar content is clearly listed on the Nutrition Facts panel. And the names of these products — such as Krave S’Mores and Cinnamon Roll Frosted Mini Wheats — obviously alert consumers that these sweet-tasting items have some added sugar.”
How much sugar do leading cereal brands contain?
While there is no federal regulation that disqualifies firms from describing a product as ‘healthy' based on its sugar levels, class action lawsuits vs General Mills, Kellogg, and Post Foods argue that the labeling of well-known cereal brands and other breakfast foods is false and misleading.
Raisin Bran Crunch contains 19g of sugar per 53g serving, accounting for 40% of the product’s calories, while Honey Nut Cheerios - the best-selling cereal in the US - contains 9g of sugar per 28g serving, accounting for 32.7% of its calories, note the plaintiffs: “Statements that these products are ‘healthy,’ ‘nutritious,’ or ‘wholesome’ are false, or at least highly misleading, because, due to their high sugar content, consumption of these products is decidedly unhealthy.”
To put this in perspective, however many yogurts – which are widely consumed at breakfast – contain 12-18g sugar per serving, while a small [8oz] glass of Tropicana Original 100% orange juice has 22g sugar.
According to Kellogg, meanwhile: "The amount of added sugar in Kellogg’s breakfast products complies with dietary guidelines that the FDA established this year for added sugars... There is no plausible allegation that the Kellogg breakfast products run afoul even of the [plaintiffs' proposed] 5% limitation for added sugar since the 12.7g on average of total sugar per serving makes up less than 2.5% of the recommended daily caloric intake."
Sugar: The new target du jour?
Attorneys we spoke to when the complaints were originally filed (click HERE) agreed that the plaintiffs faced an uphill battle and pointed to multiple holes in the filings, but said the recent shift away from fat to sugar as public enemy #1 had clearly emboldened the plaintiff’s bar.
What do food law attorneys make of the lawsuits?
"Sugar has been on most lawyers’ lists as potentially the next vilified ingredient; we’ve already seen a lot of cases abut ‘hidden’ sugars via all the evaporated cane juice lawsuits, so this to me is a logical extension of where the plaintiff’s consumer class action bar is going." Dale J. Giali, partner, Mayer Brown
"The litigation also seeks to rely on a theory of nondisclosure – that defendant failed to disclose the dangers of added sugar – akin to the case against 'Big Tobacco.' Plaintiff’s lawyers have been angling to apply this theory against 'Big Food' for some time. Rebecca Cross, counsel in the food and beverage practice at Davis Wright Tremaine LLP
"I think we’re going to see a lot more of these deceptive advertising 'sugar' cases as sugar seems to be the new target du jour." Ryan Kaiser, chair, class action and business litigation team, Amin Talati Upadhye
"Lawsuits that might be well suited to grab attention are not necessarily those that are most likely to succeed." Adam Fox, partner, Squire Patton Boggs
"The complaints throw enough at the wall that there's a chance something will stick." William Dance, attorney, Tucker Ellis LLP
*The cases are Krommenhock et al v. Post Foods LLC, Case No. 16-cv-04958; Hadley v. Kellogg Sales Company 5:16-cv-04955; and Truxel et al v. General Mills Sales, Inc 4:16-cv-04957 in the U.S. District Court for the Northern District of California.