The cereals manufacturer had brought a motion at the US district court, northern district of California, to dismiss a case filed by the DC-based Center for Science in the Public Interest (CSPI) last November on the behalf of consumers in California and New York.
The plaintiffs claim the name Cheerios Protein is misleading as it implies that the product is essentially the same as Cheerios, only with added protein.
While a 'serving' of Cheerios Protein has more protein than regular Cheerios (7 g per serving versus 3 g per serving), the plaintiffs say the amount of additional protein is not material as the suggested serving serving size and calories per serving of Cheerios Protein is considerably larger than that of regular Cheerios. They point out that, based on the brands' Nutrition Facts panels, 200 calories of Cheerios contains 6 g of protein, while 200 calories of Cheerios Protein contains 6.4 g or 6.7 g of protein, depending on the flavor.
Cheerios Protein - 17 g of sugar
They also argued that Cheerios Protein has about 17 g of sugar compared to 1 g in the original Cheerios, and that the Cheerios Protein name is misleading because it says nothing about added sugar.
Dismissing General Mills' motion, judge Thelton Henderson ruled that, although “skeptical,” he felt it was possible for the plaintiffs “to prove that a reasonable consumer was likely to be deceived".
'Fuel Up' ad not misleading
The court did, however, grant a motion by General Mills to dismiss a claim that advertising for Cheerios Protein using the slogan 'Fuel Up' - featuring a NASCAR driver picking up a child and racing him to school - was misleading.
Judge Henderson ruled the 'Fuel Up' claim was too general to constitute an actionable statement, and that “a reasonable consumer would not interpret the statement as a reliably factual claim".
When approached by BakeryandSnacks, General Mills said it does not comment on pending litigation.