Kellogg, Post & General Mills hit with wave of lawsuits as plaintiff’s bar turns up the heat on sugar

With the heat temporarily off fat, sugar is now public enemy #1, said defense attorneys after the three CPG giants were hit with class action lawsuits over the sugar content in leading cereal brands from Raisin Bran Crunch to Cheerios.

The lawsuits*, filed in the northern district of California by the same team of attorneys (Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger of the law office of Jack Fitzgerald PC), accuse the defendants of falsely advertising their cereals as healthy, wholesome and nutritious when they are in fact high in sugar – excessive amounts of which, they claim, are linked to everything from heart disease and type 2 diabetes, to cancers, cognitive decline and liver disease.

 While there is no specific regulation that disqualifies firms from describing a product as ‘healthy,’ or ‘nutritious’ based on its sugar content (conditions of use for the nutrient content claim ‘healthy’ focus on fat and sodium and don’t mention sugar), the plaintiffs argue that federal regulations enshrined in California state law require that labels are not “false or misleading,” and allege violations of California’s false advertising and unfair competition laws, and the Consumers Legal Remedies Act.

FDA does not stipulate that ‘healthy’ products must be low in sugar

Likewise, while the FDA does not define ‘high’ or ‘low’ sugar [it only sets conditions of use for ‘reduced/less/lower sugar’ claims – which none of the defendants make], the plaintiffs claim that “anything that contributes significantly more than 5% of calories from sugar” is a ‘high-sugar’ food.

Raisin Bran Crunch, for example, contains 19g of sugar per 53g serving, accounting for 40% of the product’s calories, note the plaintiffs, 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.

(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.)

Complaint: ‘Statements that these products are ‘healthy,’ ‘nutritious,’ or ‘wholesome’ are false, or at least highly misleading’

According to the complaint filed vs General Mills, “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.”

Use of the Whole Grains Council stamp on selected products also confers a health halo that sugary products do not warrant, add the plaintiffs, who similarly take issue with the ‘heart healthy’ claims on some products, given that excessive sugar consumption increases the risk of heart disease.

Meanwhile, using the term ‘no high fructose corn syrup [HFCS]’ is also deceptive, they claim, “inasmuch as many consumers incorrectly believe that HFCS is a substantially more dangerous form of added sugar than other forms.”

General Mills: This lawsuit is without merit

All three defendants have described the lawsuits as meritless, with General Mills telling FoodNavigator-USA that, “Cereal has long been established as a nutritious and wholesome way to start the day, and General Mills continues to stand behind the quality of these products and the accuracy of the products’ labels. 

“We are leading the way in increasing consumption of whole grain, and we currently offer 38 cereals with 9g sugar or less per serving, including Cheerios with 1g sugar and Kix, Corn Chex and Fiber One 80 Calorie Honey Squares with 3g sugar.”

Kellogg Company spokesperson Kris Charles added: "We usually don’t comment on litigation, but this suit is completely without merit... We stand behind our food and our labeling."

"I see this litigation as the result of the FDA’s apparent shift of focus from fat to sugar, demonstrated by its new Nutrition Facts panel and its decision to reconsider the definition of 'healthy.'  Under current regulations, conditions for using the term 'healthy' concern fat, sodium and cholesterol content – sugar content is not a factor.  And under these regulations, products named in the complaint can be labeled and marketed as healthy.  I would expect the Court, therefore, to find these claims pre-empted by current FDA regulations or to stay them on the basis of primary jurisdiction while the FDA re-evaluates the term.

"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.  After last week’s New York Times article, I’d expect to see more complaints like this."

Rebecca Cross, counsel in the food and beverage practice at Davis Wright Tremaine LLP 

Attorney: Sugar has been on most lawyers’ lists as potentially the next vilified ingredient

So what do attorneys make of the case?

Dale J. Giali, a partner at law firm Mayer Brown told FoodNavigator-USA that sugar was a hot area for litigation right now, even though the sugar levels in the products cited in the lawsuits are actually lower than many other products that people might consume for breakfast such as fruit yogurt and orange juice.

 “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."

The lawsuit is problematic in numerous ways

But he added: “The lawsuit is problematic in numerous ways as there is nothing on these labels that is ‘false’ and these are all theories of ‘implied deception,’ and once you’re in the zone of implied deception you are totally unbounded. I also think the fact that Mr Hadley [Stephen Hadley] is a plaintiff in all three cases is outrageous.

“Many of these products provide positive contributions to our nutrition, and if you want to look at the sugar content, you can just flip the pack and look at the Nutrition Facts panel.”

Meanwhile, he said: “Plaintiff’s lawyers also love to collect lots of different products that are obviously not similar; the sugar content in the product cited in the General Mills lawsuit ranges from 6g to 16g and clearly the plaintiffs didn’t purchase all of them.They are also very different products; some are also clearly marketed as a fun product for kids and others as a better for you product for adults.”

"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.  The FDA doesn’t have regulation limiting allowable sugar content levels (the confectionary industry would be in trouble if they did).  But what you’re going to see from the class action bar is increased scrutiny on sugar content levels in prepared foods marketed in one way or another as healthy. 

"In the end, it will all come down to the specific claims being made on the products, and whether the net consumer impression makes the claims misleading in light of the sugar content."

Ryan Kaiser, chair, class action and business litigation team, Amin Talati Upadhye

Case is a headline grabber, but faces many obstacles

Adam Fox, a partner at law firm Squire Patton Boggs, agreed with Giali that the plaintiffs may face an uphill battle: "Like many other lawsuits of this sort, this one does not strike me as a particularly strong on the merits. It will also likely face obstacles to certification as a class action.

"To support the plaintiffs’ claim that varied simple carbohydrates—collectively lumped together as “sugar”—can cause health problems if overconsumed, the complaint includes many pages of ostensibly supportive quotations from a wide range of sources. But little attention seems to have been given to anything other than whether those many quotations could be strung together to create a provocative narrative. Indeed, whether the complaint’s citations are rigorously performed epidemiologic studies, mere case reports or opinion pieces, or even accounts of experimental animal evidence, they are all treated by the plaintiffs as having equal weight and being relevant."

Meanwhile, he added, "The plaintiffs' perception of falsehood actually deprives them of standing to pursue injunctive relief on their own behalf or on behalf of a broader class. This is because they cannot be harmed in the same way again now that they are armed with information that leads them to question the representations of healthfulness. Indeed, my colleagues and I recently prevailed on a motion for class certification in a similar matter alleging the falsity of a health claim on a probiotic beverage and it ultimately lead to the dismissal of the plaintiff’s claims.

"Class certification will likely face other challenges, too, such as the existence of commonality among putative class members or the typicality or adequacy of the plaintiffs. In cases like this one, where different consumers may have been exposed to different representations or may have had different expectations about or reasons for purchasing the products, numerous courts have been reluctant to certify the class.

"All this to say that lawsuits that might be well suited to grab attention are not necessarily those that are most likely to succeed."

"On his firm's website, plaintiffs' lead counsel touts his involvement with the Nutella settlement.  Plaintiff's counsel in the Nutella case argued that the named plaintiff had been deceived by television advertising into thinking that Nutella, which looks like spreadable chocolate, was part of a healthy breakfast for her children. 

"This complaint is a super-sized version of the Nutella suit.  It argues that General Mills' marketing, especially with its health claims based on ingredients such as fiber and whole grain, deceives consumers into purchasing products - seemingly, every breakfast item the company offers - that aren't as healthy as General Mills claims due to their high sugar and/or fructose content.

"The allegations involve such a wide array of products, claims, and advertising vehicles that the suit will certainly be vulnerable to class certification challenges, but at the same time the complaint throws 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.