Post Foods accused of hiding added sugar danger with distracting health benefit claims

Not So Sweet

“Before they met Plaintiffs’ counsel, named Plaintiffs Debbie Krommenhock and Stephen Hadley were part of the 90% of U.S. consumers who buy cereal,” reads the acerbic motion for summary judgment filed by Post Foods Inc. before California’s Northern District in late June. “But then they saw a Craigslist ad dangling the possibility of making money by suing cereal companies, and through conversations with Plaintiffs’ counsel, they changed their minds. They stopped buying cereal and now profess to believe that added sugar is unhealthy ‒ although they still eat other foods with it.”

Yikes, as the kids say.

Endless Complaining

The motion is the latest salvo in a rather involved class action that began in September 2016 and eventually encompassed two amended complaints ‒ one filed later that year and another in September 2017. The latest complaint makes a broad claim: Because excessive consumption of sugar is highly toxic to the human body, Post Foods’ use of health benefit claims in marketing its supposed sugar-laden cereals constitutes false advertising and unfair competition under California law.

If you like sugar, stay away from this complaint ‒ about a fifth of its 150 or so pages are dedicated to enumerating the sweetener’s alleged evil effects, from cardio disease to inflammation to obesity to liver disease. The rest is dedicated to detailed demonstrations of how Post markets the health benefits of its products, and to one central argument: That Post knows the health problems posed by sugar consumption but pushes its sugary products as healthy.

The complaint is so exhaustive the court had to break it up into two parts for filing. 

The Takeaway

Unsurprisingly, Post attacks the science of the Plaintiffs’ claim, arguing that mainstream science supports its health claims even if the class’ studies do not. But this standard counterpunch is part of a larger free speech claim.

“Quite simply,” the motion states, “the Constitution prohibits Plaintiffs from using government force to suppress Post’s truthful speech. Plaintiffs may advocate their own health views. They may attempt to persuade the FDA, USDA, or other government entities to regulate added sugar. But they cannot use government coercion to bar truthful speech about the ingredients and nutritional content of cereal out of the misplaced concern that people cannot be trusted to act wisely on that information.”

The success of the motion hinges on whether the court considers the specific health claims made about ingredients besides the added sugars to be simple truth claims that stand on their own, or deceptive because they cooperate, as it were, with harmful sugars in a larger deception of consumers.

Food manufacturers should watch this case carefully!