Two companies are facing litigation over the healthful marketing of their food products. In a suit against Nutella claiming the hazelnut spread is “the next best thing to a candy bar”, the plaintiffs recently survived a motion to dismiss.
A federal judge ruled that the plaintiffs provided sufficient examples that Ferrero, the maker of Nutella, had engaged in a long-term advertising campaign that claimed the spread was healthful and nutritious.
Ferrero argued that its nationwide television commercials had only aired since 2009 and that the plaintiffs failed to provide sufficient details about the advertising campaign and how they relied upon it.
But U.S. District Court Judge Marilyn L. Huff said the plaintiffs’ complaint claimed that Ferrero’s campaign encompassed various forms of media – not just television – and “provides each of the specific statements from the advertising campaign that they challenge and how they are deceptive.”
Therefore, the plaintiffs met the federal pleading requirements, the court said, and the case could continue.
Also, a new class action lawsuit was filed against parent company Kellogg Co. over its Kashi brand health food products, which are marketed as natural and unprocessed.
The plaintiffs in the suit claim that more than a dozen Kashi products advertised as “all natural” or made with “nothing artificial” in fact contain numerous unnaturally processed and synthetic ingredients.
While the company attempted to cultivate a “health and socially conscious image,” it was actually inserting “a spectacular array” of unnaturally processed and synthetic ingredients like bromelain and malic acid into its purportedly “all natural” foods, according to the complaint.
The unnatural substances used by Kashi are not simply trace ingredients, the suit contends, but in some of the products at issue constitute primary ingredients.
Plaintiffs claim that Kashi made additional false representations on products that they could reduce cholesterol, support healthy arteries, or promote healthy blood pressure.
For example, the complaint cites the label on Heart to Heart products, which says the oatmeal and cereals contain green tea, white tea, and grape seed. “Instead, these products contain the unnatural substances decaffeinated green tea extract, decaffeinated white tea extract, and grape seed extract, a chemical preservative that the FDA has expressly refused to declare as generally safe as a direct food ingredient,” according to the complaint.
Filed in California federal court, the suit seeks restitution, injunctive relief, and punitive damages.
To read the judge’s order in In re Ferrero Litigation, click here.
To read the complaint in Bates v. Kashi Co., click here.
Why it matters: Companies making health and nutrition claims face a rising number of consumer class actions, especially over the phrase “all natural.” In addition to Kashi, companies like Snapple and Ben & Jerry’s have faced similar suits. While the Nutella suit moves forward, Judge Huff did note that some of Ferrero’s arguments were better suited for a class certification or summary judgment motion, specifically the issue of what constitutes a “long-term” advertising campaign and whether the plaintiffs can establish actual reliance on the company’s representations.