In a lawsuit* filed on January 13 in New York, plaintiff Ronnie Elliott argues that Food for Life Baking Co. Inc. misled consumers by describing its Ezekiel 4:9 branded sprouted grain cereals as nutritionally superior to comparable cereal products.
Elliott – who is represented by Joshua Levin-Epstein of Levin-Epstein & Associates PC, and Spencer Sheehan of Sheehan & Associates PC (who have filed a flurry of lawsuits against food companies in recent years) – alleges that:
- Describing sprouted grains as a ‘living food’ and referring to the ‘live grain difference’ is misleading: “By the time the sprouted grain is dried, grounded into flour and heated, any nutritional benefits which may have existed have been extinguished.”
- The products do not cite a reference food upon which the relative claims are based “which is misleading because there is no way to accurately evaluate the statements regarding the higher nutritional values of sprouted grains compared to non-sprouted grains.”
- Statements on pack associate sprouted grains with increased nutrient bioavailability owing to the release of enzymes that decrease anti-nutrients “[But] the quantity of anti-nutrients present in a relevant reference food are already low, which renders this claim misleading.”
- “The products contain misleading statements pertaining to the completeness of the proteins. (‘We discovered when these six grains and legumes are sprouted and combined, an amazing thing happens. A complete protein is created that closely parallels the protein found in milk and eggs’).” He does not elaborate on why he thinks this claim is misleading, however.
Attorney: Plaintiff's bar testing the waters with sprouted claims
So what do food law attorneys make of the case?
As this is the first lawsuit taking aim at a purveyor of sprouted grain foods, which have now carved a sizeable niche in the market, it is "not surprising a plaintiff attorney is testing the waters to see if such a claim will stick or result in a lucrative settlement," Angela Spivey, a partner at law firm Alston & Bird, told FoodNavigator-USA.
Given the lack of federal regulations related to the marketing or labeling of sprouted grain products, the defendant "will not have a strong dispositive threshold defense" (eg. such as citing federal preemption) at the motion to dismiss stage, she added.
"Defendant does, however, have strong arguments to narrow the scope of claims (many are mere puffery and clearly not misleading given the packaging as a whole) and to narrow the scope of the class based on personal jurisdiction. While the lawsuit may survive a Motion to Dismiss, I would be surprised if the case ever resulted in a certifiable class."
Attorney: 'It is odd that the plaintiff spends much of the complaint making the defendant’s case'
As for the nature of the claims, William Dance, an attorney at Tucker Ellis, noted that it was "odd that the plaintiff spends much of the complaint making the defendant’s case, that sprouted grains do indeed have various nutritional advantages over unsprouted grains."
The crux of the complaint is its contention that any such advantages are extinguished by the processing the product goes through, he added.
"If the plaintiff can meet his burden and prove that that is accurate, then Food For Life's claims that sprouted grains are superior to unsprouted grains will likely be viewed as misleading to the reasonable consumer. On the other hand, if Food For Life can show that sprouted grains actually do have quantifiable nutritional advantages over their unsprouted counterparts, the failure to precisely specify the differences will likely be seen as mere technical noncompliance with the FDA labeling regulations that does not mislead or harm consumers.
"Courts have been divided as to whether technical violations of FDA labeling rules state consumer claims when the labels are not misleading."
Assuming Food For Life’s label statements are generally accurate, he said, the company could minimize its future exposure by making more specific claims, "by stating specifically that, for example, the sprouted wheat in its cereals has a specific amount less of antinutrients, a specifically higher percentage of protein, and a specifically lower percentage of carbohydrate, than a comparable quantity of unsprouted whole wheat. It could do the same for each sprouted grain in its products. This would make for a cumbersome label, though."
As for the 'living food' claims, said Spivey at Alston & Bird, "Marketers interested in using a 'living food' claim should be careful to limit use to foods that will be alive when consumed or else make clear that the claim refers to an ingredient at a time when it was alive (e.g., sprouting grain) and that the ingredient was subsequently processed in a manner that a reasonable consumer understands would ‘kill’ the food (e.g., baking). When used in this manner, such a claim should not be actionable.
"For example, would reasonable consumers – who know they are purchasing a baked good – really be misled by the 'living food' label statement? I doubt it."
What are sprouted grains?
Sprouted grains have been allowed to germinate (sprout) in a controlled manner by exposing them to moisture and warmth. This process is then typically halted by drying the grains at just the right time (after beneficial enzymes have been activated to work their magic, but before the grains are ‘drowned’), although some firms mash wet, sprouted grains into a purée that is sold frozen.
Multiple studies show that the bio-availability of some nutrients is higher in sprouted grains because the sprouting process activates enzymes that eliminate or reduce components such as phytic acid which are designed to lock in nutrients and stop the seed germinating before it’s planted.
However, there is no regulated definition of ‘sprouted grains’ and no agreed protocols over when the germination process should be halted, or what label claims (which nutrients are increased, by how much?) firms can make, Kelly Toups, director of nutrition at Oldways, told delegates at the Whole Grains Council conference in Seattle last year. Benefits also vary by grain, making it hard to make generalized claims.
Defining standards for sprouted grains is still a work in progress
To explore what a definition might look like, the Oldways Whole Grain Council set up a working group in 2015 working with 47 individuals from 28 companies, and had made a lot of progress, said Toups: “Defining standards for sprouted grains is still a work in progress… what we’ve found is that our conversations lead to more questions than answers.”
Carlee Kelly, co-founder at product innovation consultancy Lettuce Eat, said: "What we see when seeds are sprouted are reduced anti-nutrients such as tannins, lectins, phytic acid, and increased bioavailability of micronutrients and increased antioxidants, fiber and protein, and I don't just mean content, but protein quality."
FoodNavigator-USA has contacted Food for Life for comment and will update the article accordingly if the company responds.
*Ronnie Elliott et al v Food for Life Baking Co Inc. 1:19-cv-00249 filed Jan 13 in the eastern district of New York. The plaintiff alleges fraud, negligent misrepresentation, unjust enrichment, breach of warranties and a violation of New York consumer-protection law, and seeks class certification, injunctive relief, attorney’s fees and damages.
Why sprout grains? According to the Whole Grains Council (click HERE), sprouting grains can cause many changes including:
- Complex molecules become simpler and easier to digest
- Minerals such as iron, calcium, manganese, become more bioaccessible
- Vitamin C, folate, and antioxidants can increase [ORAC scores of sprouted seeds are higher]
- Insoluble fiber decreases; soluble fiber increases
- Gluten decreases
US retail sales of products referencing sprouted grains on pack decreased slightly (-2.1%) to $267.2m in the 52 weeks to October 7, 2018, according to data** from SPINS, with the largest category - bread and baked goods - experiencing a 4.2% decline. However, there were pockets of growth in shelf-stable bars and gels (+25.5%), crackers and crispbreads (+14%), frozen entrees (+343%) and shelf-stable hot cereals (+57%).
**SPINS natural, specialty gourmet, and MULO (multi-outlet data, powered by IRI) for the 52 weeks to October 7, 2018 (dollar sales).