A Texas resident has filed a putative class action against the Kashi Co. and its parent, the Kellogg Co., in a California federal court, alleging that the company falsely labels and markets its products as “all natural” when they actually contain processed and synthetic ingredients, some of which are not generally recognized as safe by the Food and Drug Administration (FDA). Bates v. Kashi Co., No. 11-1967 (U.S. Dist. Ct., S.D. Cal., filed August 24, 2011).
Seeking to certify a nationwide class of consumers, the plaintiff names in the complaint dozens of ingredients used in Kashi snack, cereal, pizza, fruit bar, waffle, shake, trail mix, cookie, and cracker products, explains how they are produced and indicates whether they or the processes that create them are hazardous or toxic. For example, the plaintiff claims that sodium selenite is a hazardous substance. “The FDA has not declared it generally recognized as safe as a food additive, but it is approved for use as an animal feed additive.” The plaintiff also challenges as false and deceptive health benefit claims made for other Kashi products, as well as claims that particular products are “Naturally Sweetened” or are made with “Real Fruit.”
Alleging primarily economic injury in addition to ingesting harmful substances and unwittingly supporting “an industry that contributes to environmental, ecological, or health damage,” the plaintiff asserts 14 claims including (i) violations of California and Michigan consumer protection laws; (ii) restitution based on quasi-contract or unjust enrichment; (iii) breach of express warranty, implied warranty of fitness for a particular purpose and implied warranty of merchantability under state and federal law; (iv) fraudulent misrepresentation, fraudulent concealment and constructive fraud; (v) negligence and negligent misrepresentation; (vi) strict liability; (vii) assault and battery; and (viii) conspiracy. The plaintiff seeks compensatory damages and damages for “lost expectancy, emotional distress and mental anguish, and medical monitoring,” statutory penalties, restitution, punitive damages, attorney’s fees and costs, interest, an accounting, and declaratory and injunctive relief.
Specifically, the plaintiff asks the court to enjoin the defendants from continuing to make the allegedly false, deceptive and misleading statements, to order an immediate recall of all falsely labeled products and to issue an order requiring the defendants to disclose the truth of their misrepresentations.