Monday, August 15, 2016

Cheerios Protein name might be more bluff than buff

Coe v. General Mills, Inc., No. 15-cv-05112, 2016 WL 4208287 (N.D. Cal. Aug. 10, 2016)

Plaintiffs alleged the name “Cheerios Protein” was misleading because it implied that the product is essentially the same as Cheerios, only with added protein. Cheerios Protein does have more protein than regular Cheerios (7 grams per serving versus 3 grams per serving), but plaintiffs alleged that the amount of additional protein wasn’t material, particularly considering the larger serving size and calories per serving of Cheerios Protein. Plaintiffs calculated that 200 [grams?] of Cheerios contained 6 grams of protein, whereas 200 grams of Cheerios Protein contained 6.4 or 6.7 grams of protein, depending on the flavor (Oats & Honey or Cinnamon Almond).  Moreover, “Cheerios Protein” was allegedly misleading because it said nothing about added sugar. A single serving of Cheerios contains only 1 gram of sugar, but a single serving of Cheerios Protein contains 16 or 17 grams of sugar.  Plaintiffs also challenged certain label statements: that the product provides “a great start to your day,” enables you to “start your school day right,” and allows you to “kick-start your day.” And they challenged a “Fuel Up” ad, in which a NASCAR driver picks up a child and races him to school, where “he is fed Cheerios Protein pit-stop style.” They brought California and New York claims.

GM argued FDCA preemption, and plaintiffs argued that their claims were “identical to the federal labeling requirements.”  They alleged violations of some specific regulations about food naming, which the court found were inapplicable because “Cheerios” is not the common or usual name of the food or of an ingredient.  However, the FDCA also calls a food “misbranded” if its “labeling is false or misleading in any particular.”  “By its terms, the express preemption provision does not bar the enforcement of state laws imposing requirements of that type – that is, a state-law mirror of the requirement in § 343(a)(1) addressing false or misleading labels.”  The only limit is that a claim under this provision would be barred if the challenged aspects of the label complied with a specific federal regulation. A statement cannot be “false or misleading” “where challenged conduct is expressly required or permitted by FDA regulations.”

GM argued that “Cheerios Protein” was a permissible implied nutrient content claim under FDA regulations that allow certain statements about the amount or percentage of a nutrient.  But “Cheerios Protein” didn’t imply that the product contains any certain amount or percentage, or make a “good source” claim (also regulated). Plaintiffs’ claims fell under the catch-all provision and weren’t preempted.

The court also dismissed a few statements as puffery, but found that the factual status of most were not suitable for resolution on a motion to dismiss.  Though the box disclosed the sugar content and said “sweetened,” those were less prominent than other components of the label, including the “Cheerios Protein” name and the number of grams of protein in each serving.  “While the Court is skeptical that a reasonable consumer would be misled by the labeling of Cheerios Protein, it cannot say, construing the allegations in a light most favorable to Plaintiffs, that it would be impossible for Plaintiffs ‘to prove that a reasonable consumer was likely to be deceived.’”  The other label statements were also not subject to dismissal because they might contribute to the deceptiveness of the package as a whole.

However, the “fuel up” claims in the TV ad were  “too general to constitute an actionable statement. The advertisement’s claims that eating Cheerios Protein is akin to ‘fueling up’ a race car driver are ‘so exaggerated as to preclude reliance by consumers,’ and ‘a reasonable consumer would not interpret the statement as a reliably factual claim.’”

The court also agreed with “the majority view...that a plaintiff must allege the intent to purchase a product in the future in order to have standing to seek prospective injunctive relief.” The injunctive relief request was dismissed with leave to amend.

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