Once a darling of the class action plaintiffs’ bar, food labeling class actions are becoming tough nuts to crack for plaintiffs in US District Courts. Recent decisions demonstrate a progressive unwillingness on the part of federal courts to accept arguments that consumers can be misled by food products’ labels where the ingredient list on packaging expressly discloses information to the consumer about what is in the product. The courts are also more and more unwilling to find that plaintiffs who rely on US Food and Drug Administration (“FDA”) guidance or regulations to bring their claims can do so successfully where they cannot show an actual statutory violation. Such cases present an opportunity for food companies and retailers defending against these class actions to educate the courts on the FDA regulatory landscape and how it supports their labeling claims notwithstanding what the plaintiffs argue.
Just last week, courts in California and Massachusetts dismissed with prejudice putative food labeling class actions, finding that the plaintiffs could not have been misled about the amounts of sugar and honey in the products at issue because that information was plainly available to the consumers on the labels.
In Truxel v. General Mills,[1] the Northern District of California rejected arguments that General Mills misrepresented its cereals and bars as “healthy” because they allegedly contained high amounts of sugar in light of the undisputed fact that the products’ labels expressly and conspicuously disclosed the amount of sugar the products contained. In reaching its decision that the class action must be dismissed, the Truxel court relied on another recent California district court decision that found that no reasonable consumer could be deceived about the amount of sugar in a product where it is plainly disclosed on the product’s label.[2] The court in Truxel also specifically considered the fact that the FDA declined to set a daily recommended value for sugar intake, meaning that the plaintiffs had no basis under the regulations on which to argue that only a particular level of sugar was “healthy” and that anything exceeding that level could not carry that statement.
In Lima v. Post Consumer Brands,[3] a Massachusetts federal court dismissed claims relating to the supposed presence of honey in a breakfast cereal product, finding that Post’s marketing of its Honey Bunches of Oats products could not have deceived consumers about the amount of honey they contained even though honey was not the primary sweetener in the products. The court found that, as a labeling matter, honey could be either a flavor or an ingredient. The court concluded that, since the Honey Bunches of Oats tasted like honey, including “honey” on the label as a flavor was not inappropriate. The court went on to focus on the product labels at issue, concluding that the labels did not make any representation about the amount of honey in the product and the ingredient lists plainly disclosed that honey was the “least prominent of the sweetening ingredients used in the cereal.” Like Truxel, the Lima court relied on the express language of FDA regulations — not inferences or guidance — in dismissing the claims, noting that the FDA does not require manufacturers to disclose the proportion of honey in products and instead expressly permits labeling representations about recognizable flavors. On this basis, the court found that a reasonable consumer could not have thought that the product was primarily sweetened with honey simply based on use of the word honey in the product’s name and the images of honey on the box.
In a third food labeling decision last week, Andrade-Heymsfield v. Danone,[4] the Southern District of California dismissed with prejudice food labeling claims relating to the health benefits of coconut milk products, rejecting the plaintiffs’ claim that Danone’s marketing was deceptive in suggesting that the products were “healthy” notwithstanding that they were high in fat. Once again, the court focused on the information relayed to the consumer through the product’s label, finding that, because the labeling expressly and accurately disclosed the products’ fat content, a consumer knew or should have known the amount of fat in the product per serving. The Court further declined to hold that the products’ marketing statements of “Maximum Calcium Absorption” and “nutrition in every sip” were impermissible health claims regarding osteoporosis, instead finding that the statements were permissible “structure and function” claims permitted by FDA guidance.
These recent decisions may offer comfort to manufacturers that courts are taking a common-sense approach to food labeling class actions, focusing more and more on what information is actually available to the consumer and not addressing mislabeling claims in a vacuum. We are optimistic that courts nationwide will continue to approach such claims with skepticism, evaluate what information is actually available to the consumer and consider the express language of FDA guidance and regulations, construing them in line with how they were intended. We will continue to track further developments in this area to advise our clients on the best methods to defend these class actions.
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[1] Truxel et al. v. Gen. Mills Sales Inc., 4:16-cv-04957 (N.D. Cal. Aug. 13, 2019).
[2] Clark v. Perfect Bar, LLC, No. C 18-06006 WHA, 2018 U.S. Dist. LEXIS 219487 (N.D. Cal. Dec. 21, 2018).
[3] Lima v. Post Consumer Brands, LLC, No. 1:18-cv-12100-ADB, 2019 U.S. Dist. LEXIS 136549 (D. Mass. Aug. 13, 2019).
[4] Andrade-Heymsfield v. Danone US, Inc., No. 3-19-cv-00589-CAB-WVG, 2019 U.S. Dist. LEXIS 137667 (S.D. Cal. Aug. 14, 2019).
