If you are General Mills, you’re probably happy to see images of your cheery yellow Cheerios boxes turning up just about anywhere – on breakfast tables, school cafeterias, supermarket aisles. Anywhere, that is, except for in paragraph twelve of a federal class action complaint.  Photos of Cheerios boxes have gotten an unusual amount of play in legal pleadings over the past two months owing to two false advertising putative class actions commenced by consumers in California.

In October, a lawsuit was filed in the Eastern District of California alleging that General Mills engaged in deceptive and false advertising practices regarding claims that its Cheerios and Honey Nut Cheerios were “Gluten Free.” Van Lengen, et al. v. General Mills, Inc., et al., No. 2:15-cv-02262-MCE-KJN (E. D. Ca.).

The Complaint alleges that in September, 2015 (the gluten free craze having taken the nation by storm), General Mills began a major campaign to advertise its newly “Gluten Free” cereals and distributed the products throughout the United States. (¶11). The “Gluten Free” designation was also placed prominently on the Cheerios boxes. (¶12).  Plaintiffs claim the FDA received reports of adverse reactions from people who had eaten Cheerios that were labeled “gluten free,” prompting the agency to issue a Safety Alert that it was investigating complaints.  Of 36 samples of “gluten-free” Cheerios and Honey Nut Cheerios, one was found to contain 43 ppm gluten. (¶14).  In 2013, the FDA finalized a labeling rule, 21 CFR § 101.91, establishing a standard definition for gluten-free labeling of food.  Under this regulation, a food labeled “gluten-free” must contain fewer than 20 ppm gluten (i.e., below 20 mg gluten per kg of food).  Per the Complaint, any food that bears a “gluten free” claim and does not meet the requirements of the federal regulation is deemed “misbranded.” (¶17).

General Mills issued a voluntary recall of the cereal produced on four dates (1.8 million boxes) and a statement on its website (and its blog) apologizing and taking accountability for “an incident that occurred at our production facility in Lodi, California, that allowed wheat flour to enter our gluten-free oat-based system.” http://www.cheerios.com/Articles/Gluten%20Free%20Cheerios.aspx; http://www.blog.generalmills.com/2015/10/general-mills-announces-recall-of-certain-boxes-of-cheerios-and-honey-nut-cheerios/.  “Sorry”, as we might have expected, didn’t cut it for the plaintiffs’ bar.  On the back of this recall came the lawsuit.  On the back of that lawsuit, another lawsuit.

This month, a second class action complaint was filed against General Mills in the Northern District of California claiming misleading marketing of the product Cheerios Protein. Coe, et al. v. General Mills, Inc., No. 3:15-cv-5112 (N.D. Ca.).  According to the Complaint, General Mills falsely markets Cheerios Protein as a “high protein, healthful alternative to Cheerios,” when in fact the cereal “has only a smidgen more protein per serving than Cheerios” (¶4) and “17 times as much sugar per serving…which General Mills does not prominently disclose.” (¶7).  The alleged deception is achieved in part through increasing the serving size of Cheerios Protein to a cup and a half compared to ¾ cup for regular Cheerios. (¶32).  Additionally, General Mills allegedly “charges a premium for Cheerios Protein.” (¶8).  Plaintiffs claim misleading and deceptive name, labeling, and advertising in violation of California and New York consumer protection laws.

The first lawsuit looks like a run of the mill four-day long mistake that plaintiffs simply couldn’t resist trying to capitalize on, despite General Mills’ cooperation with the FDA and prompt rectification of the issue. The second, on the other hand, might be seen as a more ambitious endeavor fueled by the litigation department of consumer advocacy group Center for Science in the Public Interest, a repeat player on the class action scene.  It appears General Mills has thus far focused its defense of these claims by countering allegations that Cheerios Protein contains a negligible increase in grams of protein per serving.  It remains to be seen how the company will respond to the “stickier,” and perhaps less relevant, allegations regarding added sugar.  Notably, plaintiffs’ claim that General Mills discretely added sugar to its high-protein version of Cheerios evokes a frequently recited nutritional concern that foods marketed as “low fat” often contain higher levels of sugar and other unhealthy ingredients in order to maintain the taste and texture of their full fat counterparts. (see, e.g., http://www.bbcgoodfood.com/howto/guide/truth-about-low-fat-foods). Query whether this lawsuit could “O”-pen the door to more claims or this nature, or whether it represents another instance of plaintiffs yelling “false advertising!” without the factual support to back it up?  We will continue to report on key developments.