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Food Package Labeling Lawsuits on the Rise

11 Oct, 2016 By: Jeffrey Richter, Arthur Yoon

General Mills is among several food companies to face an increasing number of consumer lawsuits that involve claims of mislabeling food product packages. One of the latest lawsuits, filed in U. S. District Court in California, alleges General Mills is deceiving consumers with its messaging on “Cheerios Protein” packaging. The federal judge in that case has ruled that General Mills must face a lawsuit claiming it deceived children and adults by marketing Cheerios Protein as a high-protein alternative to regular Cheerios, when the main difference was that it contained more sugar per serving.

The plaintiffs also challenged certain statements on the cereal box as false or misleading. The challenged statements included, “a great start to your day,” “start school day right,” and “kick-start your day.” In short, General Mills is being accused of corporate mischief by marketing Cheerios Protein to consumers as a high-protein, healthful alternative to Cheerios when, in actuality, it may only be a high-sugar cereal. Plaintiffs sought relief under California’s consumer protection laws, including the Unfair Competition Law and Consumers Legal Remedies Act. For its part, General Mills has stated that the lawsuit is without merit and requested that the judge dismiss the lawsuit.

Upon closer observation of the ingredients contained in Cheerios Protein, the plaintiffs may have a valid point. Though Cheerios Protein has seven grams of protein per serving – vs. three grams for regular Cheerios – the plaintiffs claimed the real difference was negligible because the serving size of Cheerios Protein, and the calorie content per serving, was twice as big. Even if one ignores the serving size difference and compares the protein content of both cereals via their “Nutrition Facts” panels, the difference is still unimpressive.

The plaintiffs alleged that General Mills’ “Cheerios Protein” name is further misleading because it implied that the product was essentially the same as Cheerios, only with added protein, but said nothing about added sugar. The judge concluded that the implied claims of healthfulness on the label were misleading, rather than non-actionable puffery, because the added sugar in Cheerios Protein products exceeded the amount recommended for children’s consumption and added sugar in processed foods has substantially contributed to a host of health problems.

Though the judge was skeptical that the plaintiffs would succeed in their lawsuit, the judge refused to dismiss their claim that reasonable consumers would likely be deceived by packaging for the cereal, noting that text mentioning its sugar content and being “sweetened” appeared in small print on the boxes. The judge found that it was possible that the plaintiffs could prove that the Cheerios Protein labels would deceive a reasonable consumer. Although Cheerios Protein’s sugar content and the word “sweetened” are both reflected on the front of the box, they are less prominent and in a smaller font than other components of the label, including the “Cheerios Protein” name and the number of grams of protein in each serving.

Likewise, even if sugar content is accurately displayed in the “Nutrition Facts” box, that does not mean that the labeling as a whole cannot be misleading. The judge explained that reasonable consumers should not be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box. Accordingly, the judge refused to dismiss the lawsuit and the plaintiffs were entitled to pursue their claims against General Mills.

These types of lawsuits show the complexities advertisers face when they try to make nutrition or health-related claims for their products. Advertisers need to take a holistic approach to marketing and labeling their consumer products to minimize unfair business practice claims. Being technically compliant with federal and state regulatory labeling requirements may not be enough to avoid allegations of deceptive marketing practices.

As this case demonstrates, an advertiser cannot rely on a consumer to read and rely on the fine print in the “Nutrition Facts” panel and ingredient statement discounting the marketing puffery on the front of a package. If an advertiser makes a generalized health claim on its product package but that product has other ingredients that cancel out that claim, such as high sugar content, a consumer protection lawsuit may be forthcoming.

Jeffrey Richter and Arthur Yoon are attorneys at Blank Rome LLP. They can be reached at (424) 239-3400 or via E-mail at and

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