Stuve v. Kraft Heinz Co., 2023 WL 184235, No. 21-CV-1845
(N.D. Ill. Jan. 12, 2023)
Plaintiffs alleged that Kraft Mac & Cheese deceptively
omitted information, misleading purchasers into believing that Kraft Mac &
Cheese is free from phthalates—“plasticizing chemicals that, at certain levels,
can be dangerous to consume.” Plaintiffs filed this complaint in federal court
pursuant to the Class Action Fairness Act of 2005, They alleged violations of
multiple state consumer fraud and deceptive business practice laws; unjust
enrichment; and breach of warranty. The court dismissed claims for false or
misleading statements, breach of implied warranty for all non-Massachusetts plaintiffs,
and breach of express warranty, but declined to dismiss claims based on
material omissions and unjust enrichment.
“Each day, Kraft sells more than a million boxes of Kraft
Mac & Cheese.” The front of the box tells consumers that inside is “The
Taste You Love” with “NO Artificial Flavors,” “NO Artificial Preservatives,”
and “NO Artificial Dyes.”
However, plaintiffs allege that phthalates “enter food
during processing and packaging” and “escape from food contact materials such
as processing equipment and food packaging material into the cheese powder.” Phthalates
make plastics flexible, but also disrupt endocrines, and plaintiffs alleged
that scientific studies have linked excessive consumption of phthalates to
adverse health effects including decreased semen quality in men; endometriosis
in women; asthma, allergies, and bronchial obstruction in children; and harms to
developing fetuses.
In 2017, the Coalition for Safer Food Processing and
Packaging, a group of nonprofit health and food safety advocacy organizations, allegedly
detected phthalates in nine of the ten tested cheese powder products and found
that the phthalate levels in those cheese powders were on average four times
higher than in the 15 natural cheeses tested.
Kraft is aware that some consumers
are concerned about phthalates. On its website, the first of its published
“Frequently Asked Questions” queries, “Should I be concerned about food and
phthalates?” Kraft’s response acknowledges that customers have inquired about
phthalates in its Mac & Cheese and states, “We take your questions about
phthalates and food safety and quality very seriously because we know moms and
dads trust Kraft Mac & Cheese as a quality, tasty, and safe food for the
family.” The website also seeks to dispel concerns about phthalates in its Mac
& Cheese by stating that
[t]he safety of phthalates has been
assessed by the US Food and Drug Administration and other authorities, such as
the Centers for Disease Control. The trace levels found in the one limited test
of mac & cheese are well below any level of concern. Hundreds of servings
of mac & cheese would need to be consumed daily over an entire lifetime in
order to exceed levels determined as safe.
Plaintiffs, however, alleged that “a Kraft Mac & Cheese
packet could indeed constitute a large enough slice of a person’s daily-intake
pie chart to warrant a warning label.” Alleging that the effect of phthalates
is cumulative, plaintiffs alleged that, even if an amount of phthalates in the
product is small in absolute terms, the amount is significant relative to other
sources of phthalate exposure, which may move a consumer away from choosing the
product in favor of a potentially healthier option.
The FDA has not set a specific threshold for the level of
phthalates it allows in food, but permits the use of phthalates in food contact
applications, such as processing tools and packaging materials. The court rejected the argument that FDA’s
regulations/lack of regulatios preempted the claims. “[E]ven if Kraft is correct that FDA
regulations must be interpreted as allowance for the presence of some amount of
phthalates in consumable food, the FDA regulation would not make it impossible
for Kraft to comply with state labeling laws.” Kraft might well be able to win
summary judgment on whether the level of phthalates allegedly in a box of Kraft
Mac & Cheese even comes close to approaching the amount that the FDA has
deemed a “tolerable intake” via oral exposure, but that was a fact issue.
Neither did the NLEA preempt the claims, even though the FDA
has issued a regulation exempting manufacturers from the obligation to disclose
“[i]ncidental additives that are present in a food at insignificant levels and
do not have any technical or functional effect in that food.” “Incidental
additives” include “[s]ubstances migrating to food from equipment or packaging
or otherwise affecting food” so long as they are “not food additives,” or, if
they are food additives, “are used in conformity with regulations established
pursuant to section 409 of the act.” The court couldn’t determine whether this
exemption applied, because whether phthalates are present only at an
“insignificant level” was a question of fact. Plaintiffs expressly contested
the meaning of “insignificant level” and alleged that consumers care about the
amount of phthalates in Kraft Mac & Cheese even in very small amounts.
Turning to materiality, which is what I find most
interesting, the court rejected (at this stage) Kraft’s argument that the
amount of phthalates allegedly present in its Mac & Cheese was too
miniscule to be material to reasonable consumers. Plaintiffs plausibly alleged
that reasonable consumers do care
about the presence of phthalates in their food, even in small amounts. As a
matter of common sense, it is plausible that a reasonable consumer would choose
to avoid foods at risk of containing phthalates in light of the list of health
problems allegedly caused by phthalate consumption—including endocrine
disruption, cancer, and neurodevelopmental problems. It is not obvious from the
pleadings that safety risks associated with even small amounts of phthalates
are “non-existent and hypothetical” such that Kraft had no duty to disclose the
presence of phthalates in its macaroni and cheese to consumers.
The court pointed to Kraft’s own website as “arguably”
confirming this point. “That content reflects Kraft’s understanding that its
customers consider the presence of phthalates in food to be important
information.” Even if Kraft was ultimately right in its reassurances, “the
website confirms that Kraft is conscious of its consumers’ concerns about
phthalates and has expended resources in responding publicly to those concerns.
Absent evidence to the contrary, Kraft’s acknowledgement of consumer concerns
supports a finding that it is plausible that phthalate content in food, even in
small amounts, is material to reasonable consumers.”
Further, plaintiffs alleged that survey data shows consumers
do care about the presence of phthalates in food. “Plaintiffs’ counsel asked
400 adult consumers who bought boxed macaroni and cheese within the preceding
six months if the presence or risk of even a small amount of phthalates in
products would be important to their purchasing decision, and approximately
89.5% answered that it would be either important or very important.” At this stage,
the court wouldn’t discard the survey as biased or flawed.
True, Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 1225 (9th
Cir. 2019), held that a survey purportedly showing that consumers understood
the term “diet soda” to mean that the drink would “either help them lose
weight, or help maintain or not affect their weight” was irrelevant to what a
reasonable consumer would understand “diet” to mean. “But there is a
significant difference between a survey asking about a person’s understanding
of the meaning of a word in context and one asking about a person’s own
concerns…. The reasonableness of those concerns depends on whether those
phthalates are present in an ‘insignificant amount,’ which is an open question
of fact at this stage of the litigation.”
However, the affirmative “NO Dyes,” “NO Artificial Flavors,”
“NO Artificial Preservatives,” and the phrase “gooey, cheesy goodness” were not
plausibly misleading on the facts alleged:
Plaintiffs didn’t allege that Kraft Mac & Cheese does
contain artificial preservatives, flavors, or dyes. Instead, they alleged that
the statements “lead reasonable consumers to believe that the Products are
wholesome, safe, and healthy, and do not contain dangerous chemicals or
artificial substances, like phthalates.” But “[t]he alleged presence of a
negative substance does not prohibit a manufacturer from advertising a
product’s positive qualities.” And “The Taste You Love” and “Gooey, Cheesy
Goodness” were “textbook puffery.”
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