Lam brought a putative class action against General Mills
based on allegedly misleading claims about the healthfulness of its fruit
snacks such as Fruit Roll-Ups and Fruit by the Foot. The court granted in part and denied in part
GM’s motion to dismiss. The products
“resemble fruit leather” and the packages identify the products as “fruit
flavored snack[s]”; the strawberry version says it’s “strawberry natural flavored.” The side panel says “made with real
fruit.” The ingredients: Pears from
Concentrate, Corn Syrup, Dried Corn Syrup, Sugar, Partially Hydrogenated
Cottonseed Oil, Citric Acid, Acetylated Monoglycerides, Fruit Pectin, Dextrose,
Malic Acid, Vitamin C (ascorbic acid), Natural Flavor, Color (red 40, yellows 5
& 6, blue 1).
Lam alleged that GM failed to properly disclose that the
Fruit Snacks contained partially hydrogenated oil/trans fats. In addition, the snacks have no significant
amounts of real fruit, and “made with real fruit” allegedly deceptively
describes the ingredients, since “pears from concentrate” isn’t the fruit
indicated by the product name.
Strawberry-flavored Roll-Ups contain no strawberries. Lam also objected to the terms “fruit flavored
snacks,” “naturally flavored,” and “gluten free.” She brought the usual California statutory law
and warranty claims.
To the extent the complaint didn’t identify specific
products but only targeted “similar” products, the court dismissed the complaint
with leave to amend.
GM argued that the claims were preempted by the Nutrition
Labeling and Education Act to the extent they are predicated on the “fruit
flavored” and “naturally flavored” terms; Lam responded that claims of
falsity/misleadingness in violation of the regulations were not preempted.
The FDCA requires foods with artificial flavoring to be
properly labeled, and the FDA has promulgated comprehensive regulations
relating to such labeling. The NLEA then
preempted certain regulations that weren’t identical to various FDCA standards,
including the relevant labeling requirements.
GM argued that “fruit flavored” and “naturally flavored” were expressly
permitted by the regulations, which allow manufacturers to identify the
“characterizing flavor” of a food in this way when the food doesn’t contain
enough of the actual ingredient to justify a claim that it’s made with that
ingredient. Thus, it is possible under
the regulations to label a product as “natural strawberry flavored” even if it
has no strawberries. The court found the logic “troubling,” but no matter, as
the regulations controlled.
Lam argued that she was seeking to enforce the FDCA’s ban on
failure to disclose the presence of artificial flavors, and that “fruit
flavored” and “naturally flavored” were false and misleading because the Fruit
Snacks were flavored with “unnatural, non-fruit ingredients.” These claims failed because the crux of her
claim was that the labeling was deceptive because the ingredients, not the
flavors, were unnatural. But a product
can be labeled “fruit flavored” or “naturally flavored” even if it doesn’t have
fruit or natural ingredients, so long as it “contains natural flavor” which is
“derived from” the “characterizing food ingredient.” So her claims were preempted.
How about “gluten free” and “made with real fruit”? “Gluten free” couldn’t support Lam’s claims,
since the statement was objectively true and couldn’t be taken to convey
anything other than gluten-related claims.
“Made with real fruit,” by contrast, could be misleading in the context
of a product that is actually made with trans fats, is about half sugar, and
has pears from concentrate instead of the fruit indicated by the product
name. This, along with the depiction of
“imitation fruit leather” on the package could deceive consumers into thinking
that the Fruit Snacks were healthful, natural, pressed-and-dried fruit
products, “when, in fact, they are an amalgamation of artificial, non-fruit
ingredients.”
GM argued that the statement was objectively true and that a
reasonable consumer wouldn’t expect that certain fruits were present in a
particular quantity or that a specific fruit was present. The court
disagreed. “A reasonable consumer might
make certain assumptions about the type and quantity of fruit in the Fruit
Snacks based on the statement ‘made with real fruit,’ along with other
statements prominently featured on the products' packaging.” Given the size and color of “made with real
fruit” and the size of the word “strawberry,” which appeared multiple times on
the package, a reasonable consumer might believe the product was made with real
strawberries, not pears from concentrate.
Likewise, the names “Fruit Roll–Ups” and “Fruit by the Foot,” “along
with the fanciful depiction of the products, which resemble fruit leather, may
lead to further confusion about the Fruit Snacks' ingredients. After seeing
these prominent aspects of the packaging, a reasonable consumer might be
surprised to learn that a substantial portion of each serving of the Fruit
Snacks consists of partially hydrogenated oil and sugars.” The ingredient panel discloses the truth, but
that’s not sufficient, especially at the pleading stage. As the Ninth Circuit has ruled, “We do not
think that the FDA requires an ingredient list so that manufacturers can
mislead consumers and then rely on the ingredient list to correct those
misinterpretations and provide a shield for liability for the deception.”
However, Lam failed to state a claim for breach of express
or implied warranty. There was no
affirmative statement that the Fruit Snacks were healthful.
No comments:
Post a Comment