Court should dismiss ‘absurd’ added sugar lawsuits, argues Mondelez, while Post Foods cites first amendment rights
In the lawsuits,* Mondelez, Post Foods, General Mills, and Kellogg are accused of misleading shoppers by presenting their breakfast biscuits, snacks, and cereals as healthy options – either directly or indirectly - when they are in fact high in sugar, excessive amounts of which, the plaintiffs allege, are linked to everything from heart disease to type 2 diabetes.
While there is no specific regulation that disqualifies firms from implying or stating that products are healthy or nutritious based on sugar content, the plaintiffs argue that federal regulations enshrined in California state law require that labels are not “false or misleading,” and allege violations of California’s false advertising and unfair competition laws, and the Consumers Legal Remedies Act.
For example, while Mondelez does not describe its belVita biscuits as ‘healthy,’ or ‘low sugar,’ it targets them at health-conscious consumers, and promises “nutritious steady energy all morning,” note the plaintiffs, who argue that such statements are deceptive given the “dangers of the excessive sugar consumption to which the products contribute.”
Mondelez: Our products don’t contain excessive sugar…
In court documents attacking the “absurdity” of the plaintiffs’ arguments, however, Mondelez said that the amount of sugar in its biscuits is clearly displayed on the front and back of the label, while the 'nutritious steady energy' claim “truthfully characterizes the belVita products.”
It added: “If plaintiffs somehow thought that the phrase ‘4 hours of nutritious steady energy’ meant that the belVita biscuits had little or no sugar, such a misimpression would be dispelled by other information on the packaging...”
But more to the point, said Mondelez, “Plaintiffs have failed to plausibly allege that the belVita products even contain ‘excessive’ added sugar,” given that with an average of 10.7g added sugar per serving, belVita biscuits contain less than a quarter of the FDA’s daily reference value for added sugar (10% of energy intakes or 50g sugar on a 2,000-calorie-a-day diet).
“And since breakfast is only one of the three meals that a person typically eats each day, plaintiffs’ conclusory allegation that the belVita products contain ‘excessive’ sugar is implausible.”
Post Foods cites First Amendment
In court documents defending a similar case over allegedly excessive sugar levels in its cereals, meanwhile, Post Foods deployed a First Amendment defense, citing a September 2017 Ninth Circuit ruling in a case brought by the American Beverages Association** striking down a San Francisco ordinance requiring sugary drink ads to include health warnings.
The health warnings – said Post - violated manufacturers’ First Amendment rights not to be compelled to convey a message that ran ‘contrary to statements by the FDA that added sugars are generally recognized as safe, and can be part of a healthy dietary pattern when not consumed in excess amounts.’
By the same logic, claimed Post, a court should not be able to censor Post's truthful claims that its cereals are nutritious just because they contain added sugar: “Post is legally entitled to speak about the healthiness of its cereals without being censored or punished.”
Attorney: First amendment defense could feature in more added sugar cases
Perkins Coie partner Charles Sipos told FoodNavigator-USA: “It will be interesting to see the extent to which first amendment defenses come into play in these sugar cases... The ninth circuit basically concluded that there is still significant scientific disagreement about whether sugar is uniquely harmful beyond being just a source of calories…
“Yet in these lawsuits, plaintiffs argue that it is unlawful to even state something truthful about the beneficial aspects of your product simply because it has this much sugar in, which is a classic first amendment restriction on commercial speech… What you might see happening is that this [first amendment defense] works into more sugar cases in 2018.”
How much sugar is in breakfast products?
Mondelez’s belVita biscuits contain 8-14g added sugar per serving, which plaintiffs in a recent lawsuit describe as “excessive.” To put this in perspective, many other breakfast products contain more sugar. Yogurts, for example, typically contain 12-18g sugar per serving, while a small [8oz] glass of Tropicana Original 100% orange juice has 22g sugar.
In the cereal aisle, meanwhile, Raisin Bran Crunch contains 19g of sugar per 53g serving, and Honey Nut Cheerios - the best-selling cereal in the US - contain 9g of sugar per 28g serving.
What does the FDA say about added sugar?
The FDA does not define ‘high’ or ‘low’ sugar, and only sets conditions of use for ‘reduced/less/lower sugar’ claims, which belVita and other brands targeted in recent litigation are not making.
According to the FDA, the daily reference value for added sugar is 10% of the total energy intake, or 200 calories, which amounts to 50 grams for adults and kids over four on a 2,000 calorie/day diet (1g sugar has 4 calories). The DRV is 25g (100 cals) for children aged one to three years.
What are the WHO guidelines on added sugar?
The World Health Organization (WHO) also recommends adults and children reduce their daily intake of added sugars to less than 10% of their total energy intake, and says a further reduction to below 5% would provide additional benefits.
Added sugar emerging as a hot area for litigation
Speaking to FoodNavigator-USA in November, Keri Borders, a partner at law firm Mayer Brown, said added sugar was emerging as a hot area for litigation, even though the sugar levels cited in the recent wave of lawsuits [filed by the law offices of Jack Fitzgerald PC] are lower than those in many other products that people consume for breakfast.
What the cases also highlighted was that the word 'nutritious' - an ill-defined term that plaintiff's attorneys see as a code-word for 'healthy' - is providing fertile ground for false advertising lawsuits, she added.
“The claims in the earlier complaints [against the cereal companies] were narrowed but they survived the motion to dismiss stage so it's not surprising that he [attorney Jack Fitzgerald, who is behind these suits] has taken this same theory and applied it to another type of product, and I expect he'll probably take it into other categories as well.”
Adam Fox, a partner at law firm Squire Patton Boggs, however, said the plaintiffs faced an uphill battle, adding: "Like many other lawsuits of this sort, this one [vs Mondelez - see below] does not strike me as a particularly strong on the merits and I would expect it to face serious challenges to certification as a class action."
*The cases are: Patrick McMorrow and Marco Ohlin et al v Mondelez International, 3:17-cv-02327 filed on November 16, 2017 in the southern district of California, by the law offices of Jack Fitzgerald PC and Paul K Joseph PC; Krommenhock et al v. Post Foods LLC, Case No. 16-cv-04958; Hadley v. Kellogg Sales Company 5:16-cv-04955; and Truxel et al v. General Mills Sales, Inc 4:16-cv-04957 in the U.S. District Court for the Northern District of California.
** American Beverage Association et al v City and County of San Francisco 3:15-cv-03415. Click HERE to read the ninth circuit ruling. The warning label in question said: "Warning: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay."
