Reconsideration of Honey Bunches of Oats false advertising claims denied

A court found that consumers failed to show why a reasonable consumer would believe Honey Bunches of Oats was sweetened primarily by honey.

In a memorandum opinion and order, a court denied consumers’ motion for reconsideration of their claims that Post Consumer Brands, LLC used deceptive packaging and advertising that led consumers to believe that Honey Bunches of Oats was sweetened primarily by honey. The court found that emphasizing the imagery of bees and honey on a product that contained honey and tasted like honey, was not deceptive (Lima v. Post Consumer Brands, LLC, October 2, 2019, Burroughs, A.).

Labeling. Two consumers purchased Honey Bunches of Oats with Almonds under the belief that the cereal was sweetened exclusively or primarily with honey. The consumers relied on television commercials and the product branding and packaging that emphasized the presence of honey. The consumers claimed that the packaging and marketing led them to expect that honey was a prominent ingredient. The consumers did not look at the ingredient list, which disclosed that honey is the cereal’s fifth most prominent sweetener. The consumers filed a putative class action against Post, alleging that the advertising and packaging of Honey Bunches of Oats was deceptive. Post filed a motion to dismiss and the court granted the motion (see Health Law Daily, Aug. 16, 2019). The consumers then filed a motion for reconsideration.

Consumer protection claims. The consumers argued that whether Post’s packaging was ambiguous was a determination of law that should not have been made at the motion to dismiss stage. They further argued that the issue of whether the consumers were reasonable to think that honey was the predominant sweetener should have been left to the jury. The court noted that it did not consider the factual matter of whether the consumers were misled by the packaging, but instead considered whether the allegations made it plausible that on a full factual record, a factfinder could reasonably regard the label as having the capacity to mislead.

The consumers further argued that they should not have had the burden of pleading why they concluded that honey was a sweetener, as opposed to a flavor. The court held that it was permissible for Post to use the images of honey and bees because honey was a characterizing flavor and the cereal included honey as an ingredient. Had the cereal not contained honey, then Post would have been required to include sufficient cautionary language explaining that it was naturally or artificially flavored. Because the cereal did contain honey, the burden shifted to the consumers to plead why the packaging and marketing would lead a consumer to believe that the cereal was not only honey flavored and contained honey, but also that honey was the primary sweetener. The consumers failed to plead why they believed honey was a sweetener and not only a flavor.

Express warranty claims. The consumers argued that the court failed to consider that an express warranty can be created through the packaging’s words and images. The court noted that it was explicit in its analysis of the use of the Honey Bunches of Oats brand name and the imagery on the packaging to determine whether Post made an express warranty. The court held that the consumer failed to demonstrate that the court’s analysis depended on a misinterpretation of law.

Request for leave to replead. The consumers asked the court to give them leave to amend to include a survey the consumers conducted relating to consumer impression of the packaging at issue. The consumer pointed to their opposition to the motion to dismiss, which contained a request that “if the Court believes any aspect of Post’s motion should be granted for a reason that has not previously been subject of amendment, Plaintiffs request leave to amend.” The court cited the circuit court in finding that “a passing request for contingent leave to file an amended complaint, made in opposition to a motion to dismiss, is insufficient, in and of itself, to bring a post-judgement motion for reconsideration within the orbit” of the requirement that courts freely give leave to amend.

Trader Joe’s enjoys sweet victory, dismissal of honey labeling case

A putative class action involving allegations related to Trader Joe’s Manuka Honey has been dismissed after a California federal district court granted Trader Joe’s motion to dismiss without leave to amend. The consumers alleged that Trader Joe’s mislabeled and falsely advertised its manuka honey as “pure” when it was allegedly adulterated. In dismissing the complaint, the court concluded that plaintiffs could not plead sufficient facts to support their adulteration theory since their theory involved the bee’s mixing of pollen and not the manufacturer intentionally mixing manuka honey with non-manuka honey. Since the consumers admitted they could not plead enough facts to support their adulteration claims, the court also dismissed the breach of warranty and fraud claims. The product labeling is accurate and, therefore, not misleading. Finally, the state law claims are preempted (Moore v. Trader Joe’s Company, June 24, 2019, Westmore, K.).

Trader Joe’s (manufacturer) markets and sells “Trader Joe’s Manuka Honey.” Plaintiffs (consumers) allege that two representations contributed to their alleged injuries. On the front label, the product states “100% New Zealand Manuka Honey” or “New Zealand Manuka Honey. The ingredient statement lists “manuka honey” as the only ingredient. The consumers allege that the product testing they purchased showed that approximately 57 and 62 percent of the pollen in the tested honey was from the manuka flower; the remaining pollen was from other floral sources. The consumers allege that Trader Joe’s sales and marketing violate consumer protection laws because the honey is mislabeled and falsely advertised as pure manuka honey, but it should be labeled as “Manuka-based.” Trader Joe’s filed a motion to dismiss.

Insufficient facts to support adulteration

The court granted the manufacturer’s motion to dismiss without leave to amend because the consumers confirmed they could not plead sufficient facts to support the adulteration theory.

The consumers’ theory of adulteration is that bees visit different floral sources and return to the hive, which lowers the manuka pollen count; their theory was not that the manufacturer purposefully mixed manuka honey with non-manuka honey. The FDA’s industry guidance on honey labeling, which was referenced by both parties, only discusses adulteration with non-honey sources and not mixing high-value honey with less expensive honey. Further, the guidance does not address whether the mixing would constitute adulteration.

The court concluded that to constitute adulteration, the manufacturer would have to purposefully mix manuka and non-manuka honey. In this case, all the involved honey is technically manuka honey with varying pollen counts—there is no adulteration in violation of the FDC Act.

Since the consumers could not demonstrate adulteration, the court also dismissed the breach of warranty claim and fraud claim. The fraud claim is not actionable because it is predicated on adulteration whereby the manufacturer (not bees) purposefully mixed manuka and non-manuka honey; the consumers have no facts to support that theory.

Product labeling is accurate and not misleading

The court concluded that product label is accurate because the consumers cannot allege adulteration, honey is a single ingredient food, and the chief floral source is manuka. Furthermore, since the label is accurate, a reasonable consumer cannot find it misleading. Trader Joe’s product is accurately labeled as 100 percent manuka honey.

FDA wants to know how you define “healthy”

The FDA wants to know how consumers view and use the Nutrition Facts label while purchasing foods; so much so that it is taking steps seeking public input on how the claim “healthy” is used on food packages. Noting that there are various terms on food packages such as “healthy,” “low in fat,”or “good source,” the FDA recognized that many consumers do not have the time to consider the details of nutrition information on every package purchased. In fact, most purchase decisions are made quickly, within three to five seconds.

The agency’s interest extends to questions such as: (1) what current dietary recommendations should be reflected in the definition of “healthy;” (2) what are the public health benefits of defining the term “healthy;” (3) what do consumers expect of foods that carry a “healthy” claim; and (4) what factors and criteria should be used for the new definition of “healthy.” Future public forums will explore these topics. The FDA will also begin the process of evaluating other label claims in order to modernize food labels in a manner that consumers find useful.

The public input is in part due to concerns that food manufacturers were not complying with requirements permitting content claims. In 2015, the FDA issued a warning letter to Kind, saying the food manufacturer could not claim its fruit and nut bars were healthy because they contained too much saturated fat and because it described the antioxidant content as healthy despite no medical definition to back up the claim. Following receipt of the closeout letter, Kind requested confirmation that it could use the phrase “healthy and tasty” only in text referencing its corporate policy. The FDA did not object, as long as Kind did not use those terms on the same display panel as nutrient content claims or nutrition information.

While the FDA is considering how to redefine the term “healthy” as a nutrient content claim, food manufacturers can continue to use the term “healthy” on foods that meet the current regulatory definition as the agency does not intend to enforce the regulatory requirements for products that use the term if certain criteria described in a newly published guidance document are met.

 

New federal law preempts Vermont’s efforts to regulate GMO labeling

In an effort to streamline laws regarding the labeling of food produced with genetic engineering (GE), President Obama signed into law S. 764, the first federal law to require labeling of genetically modified ingredients. The legislation will require most food products to bear a text label, a symbol, or an electronic code readable by smartphone that allows consumers to determine whether a food contains genetically modified organisms (GMOs). The law undercuts efforts by the state of Vermont to require specific labeling on foods produced with GE.

Federal law seeks to streamline labeling requirements

The federal law calls upon the U.S. Department of Agriculture (USDA) to establish a national mandatory bioengineered food disclosure standard. The USDA has two years to draft regulations to implement the labeling standard. S. 764 explicitly preempts state laws, such as Act 120, by prohibiting individual states from continuing “in effect as to any food or seed in interstate commerce any requirement relating to the labeling of whether a food . . . or seed is genetically engineered.”

With the signing of S. 764, the Vermont Attorney General announced that it will no longer be enforcing Act 120, Vermont’s GMO labeling law. Vermont Governor Peter Shumlin called S. 764 a “flawed bill [that] is a capitulation to the food industry that does not even come close to providing the transparency consumers deserve.

Act 120: Vermont’s efforts to require GMO labeling

The Vermont legislature passed Act 120 in May 2014. The law required the labeling of food produced with GE. Under what Governor Shumlin touted as “a common sense labeling law that guarantees clear, accessible information,” products offered for retail sale in Vermont that are entirely or partially produced with GE were required to be labeled as follows:

  • Packaged raw agricultural commodities required labeling on the packaging with the clear and conspicuous words, “produced with genetic engineering.”
  • Raw agricultural commodities not separately packaged required labeling on the retail store shelf or bin where the product is displayed for sale with the clear and conspicuous words, “produced with genetic engineering.”
  • Processed foods containing a product or products of genetic engineering required labeling on the packaging with the words “partially produced with genetic engineering;” “may be produced with genetic engineering;” or “produced with genetic engineering.”
  • Manufacturers of food produced entirely or in part from genetic engineering were prohibited from labeling the product on the package, in signage, or in advertising as “natural,” “naturally made,” “naturally grown,” “all natural,” or any similar words that would have the tendency to mislead a consumer.