The lawsuit, which Kellogg claims is “meritless,” was filed in New York on behalf of plaintiffs in New York and California by the Center for Science in the Public Interest (CSPI), Michael R. Reese and George V. Granade of law firm Reese LLP and Steven A. Skalet and Craig L. Briskin of Mehri & Skalet, PLLC.
According to the plaintiffs, the crackers in question are “virtually indistinct nutritionally from Cheez-It Original crackers,"
They add: "Cheez-It Whole Grain crackers are not predominantly whole grain, despite the reasonable expectations that Kellogg has created by distinguishing Cheez-It Whole Grain crackers from other crackers in the Cheez-It product line by denominating them ‘Whole Grain.’
“By contrast, Nabsico Wheat Thins Whole Grain are 100% whole grain, as are Nabisco Triscuit crackers. Similarly, Pepperidge Farm Goldfish Baked With Whole Grain are predominantly whole grain flour (whole wheat flour being the first ingredient).”
Kellogg: this suit is completely without merit
However, Kellogg spokesperson Kris Charles told FoodNavigator-USA that consumers were not being misled: “This suit is completely without merit. Our Cheez-It Whole Grain labels are accurate and in full compliance with FDA regulations. We stand behind our foods and our labels.”
CSPI litigation director Maia Katz, in turn, argued that Kellogg was duping shoppers by implying that the product was something it wasn't: “Consumers are seeking out whole grain foods, and expect that when they see the words ‘whole grain’ on the package that whole grain is the main ingredient.
“Kellogg’s Whole Grain Cheez-Its have more white flour than whole grain. It’s effectively a junk food, and Kellogg is taking financial advantage of consumers who are trying to make better decisions for their health.”
FDA draft guidance on whole grain claims
So where does the law stand?
According to the Food and Drug Administration (FDA), manufacturers can make factual statements about whole grains on the label of their products, such as ‘10 grams of whole grains,' ‘½ ounce of whole grains,' or ‘100% whole grain oatmeal’ provided that the statements are not false or misleading and do not imply a particular level of the ingredient, eg.‘high’ or ‘excellent source.'
In 2006 draft guidance (which is not legally binding and has still not been finalized), however, the FDA cautions against the use of certain unqualified whole grain statements in labeling for products that also contain some refined grain ingredients and advises that, depending on context, a simple statement such as ‘whole grain’ may be construed as meaning the product is 100% whole grain (p6).
Whole grain whole wheat flour contains all parts of the grain seed in their original proportions, including the germ, endosperm and bran. Enriched flour is from refined grains (which only contain the starchy endosperm), with added iron and B vitamins.
FTC: Consumers may interpret unqualified claims to mean that all or nearly all of the grain in the product is whole grain
In comments penned by the Federal Trade Commission (FTC) the same year, FTC officials also argue that there is “potential for consumers to be misled or confused by unqualified ‘whole grain’ claims for products that contain a mixture of whole grain and refined grain."
The FTC has also urged the FDA to “consider establishing definitive percentage and minimum content standards” for whole grain claims, adding that “such specific standards would provide even greater clarity for food manufacturers and consumers and ensure the claims are being used consistently in the marketplace.”
Attorney: Kellogg clearly states the whole grain content on the front of pack
So what do defense attorneys make of the case?
David L. Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP, told FoodNavigator-USA that Kellogg could argue that the claims are pre-empted by federal law, because the FDA allows factual statements about whole grains on pack provided they are not false or misleading, and the ‘Whole Grain Cheez-Its’ in question clearly state how many grams of wholegrains you get per serving on the front of pack.
He added: "The interesting issue is whether plaintiff can get traction for the argument that the products are misleading because they suggest that the Cheez-It Whole Grain crackers are predominantly whole grain and that consumers would not expect the ingredients to include more enriched flour than whole wheat flour.
“This argument has superficial appeal but leads to the result that all ‘whole grain’ claims must either assert ‘100% whole grain’ or provide the specific ratio of whole grains and refined grains in the product. And that result is not supported by the regulations.”
“Cheez-Its Made with Whole Grain contain 8g of whole grain in each 29g serving. The ingredient list indicates that this product includes more refined grain than whole grain. Starting with the 2010 Dietary Guidelines, products with at least 8g of whole grain per ounce have been officially recognized as one way for people to start making the shift to consuming more whole grain…
"Because the Whole Grain Stamp clearly states the number of grams of whole grain per serving, it helps consumers make comparisons and 'move up the ladder' as they become accustomed to the fuller, nuttier taste of whole grains.
“For example, there are 95 crackers in our database made entirely with whole grain (no refined grain), so we urge consumers ready for ‘higher rungs on the ladder’ to look for the 100% Whole Grain Stamp.”
Kelly Toups, MLA, RD, LDN, program pirector, Whole Grains Council
Attorney: ‘They almost want you to put the ingredients list on the front of the pack’
However, Dale J. Giali, a partner at Mayer Brown, told us that much would depend on the judge assigned to the case.
In a similar case (Workman v. Plum (Organics) 3:15-cv-02568) for example, Judge William Alsup ruled in Plum’s favor, arguing that large photos of fruit & veg on labels wouldn’t mislead a reasonable consumer into thinking those ingredients made up most of the company’s pureed snacks or fruit bars for kids.
“One can hardly walk down the aisles of a supermarket without viewing large pictures depicting vegetable or fruit flavors, when the products themselves are largely made up of a different base ingredient,” Judge Alsup said. “Every reasonable shopper knows that the devil is in the details.”
However, not all judges in such cases had taken a similar approach, said Giali.
Meanwhile, the fact that this case has been filed at all suggests that where there are any perceived discrepancies between the name and imagery on the front of pack and the ingredients list on the back, companies are vulnerable to litigation, he said.
“It’s got to the stage where they almost want you to put the ingredients list on the front of the pack.”
"The FDA has no regulation on the quantity of whole grains necessary for 'whole grains' claims. Ten years ago, in draft guidance, the agency recommended that 'whole grain' products should contain at least 8g whole grain per 30g serving.
"The CPSI has advocated for disclosure of the percentage of whole grains on 'whole grain' products. In order to foreclose CSPI’s more stringent requirements, food companies have asked the FDA to finalize its guidance.
"In the meantime, a few similar lawsuits have been filed, mostly against makers of bread and baked goods. Perhaps these suits will prompt the FDA needs to act on the issue."
Rebecca Cross, partner, BraunHagey & Borden LLP
*The case is Kristen Mantikas, Kristin Burns and Linda Castle v Kellogg Company filed on May 19 in the eastern district of New York. No. 2:16-cv-02552