Judge says lawsuit taking issue with added sugar levels in Clif Bar can proceed
Clif Bar is one of several high-profile brands to be sued for allegedly adding ‘excessive’ amounts of sugar to products marketed to health-conscious consumers.
General Mills recently prevailed in one such case** over sugar levels in its cereals, with the judge concluding, after a three-year legal battle, that the plaintiffs "cannot plausibly claim to be misled.”
He also noted that, “The actual ingredients were fully disclosed and it was up to the plaintiffs, as reasonable consumers, to come to their own conclusions about whether or not the sugar content was healthy for them.”
Judge: Plaintiffs have made plausible claims at this stage of proceedings
However, in an August 19 order rejecting a motion to dismiss a similar case vs Clif Bar, US District Judge James Donato said he was not persuaded by arguments made by the company, which noted that the bars contain sugar levels below the daily value recently defined by the FDA for added sugar.
The fact that a consumer does not exceed the entire daily value for added sugar by eating a single Clif Bar is “hardly a basis for kicking these claims out at the motion to dismiss stage,” said Donato, who said the claims were not pre-empted by federal labeling laws or the agency’s final rule on the %DV for added sugar.
“Plaintiffs have laid out in painstaking and voluminous detail how this substantial percentage of added sugars in Clif’s products can contribute to excessive sugar consumption, which in turn has been linked to many diseases and detrimental health conditions,” said Donato.
“At this stage of the proceedings, the Court takes these allegations as true, and taken as such, the Court concludes that plaintiffs have stated a claim and, “given the opportunity . . . could plausibly prove that a reasonable consumer would be deceived.”
The law and added sugar
The FDA has set a daily reference value of 50g added sugar, or 10% of calories based on a 2,000-calorie diet to be included on the new-look Nutrition Facts panel. It does not define ‘high’ or ‘low’ sugar, and only sets conditions of use for ‘reduced/less/lower sugar’ claims.
While there is no specific regulation that disqualifies food brands from implying or stating that products are healthy or nutritious based on sugar content, consumers may not realize that a quarter to a third of calories in classic Clif bars are derived from added sugar, claims the plaintiff.
This means that a single Clif bar with up to 22g added sugar could account for 44% of the FDA’s 50g daily value for added sugar or 88% of the World Health Organization’s ‘ideal’ daily limit of 25g (5% of energy).
Keely Wachs, director, company affairs, at Clif Bar, told FoodNavigator-USA in 2018 that the firm's bars were “energy foods designed for active lifestyles, and include carbohydrates to provide the energy required to perform in these types of activities."
But she also noted that, “In addition to CLIF Bar and Zbar, we provide a portfolio of nutritious bars for adults and kids with lower sugar for less active eating occasions.”
Clif Bar: ‘A reasonable consumer would know that the challenged products contained added sugar’
In a motion to dismiss the lawsuit, however, attorneys for Clif Bar argued that the complaint was “based on factually unsupported conclusions that Clif Bar products are ‘high-sugar’ (a term not defined by FDA), and on speculative concerns about the long-term health risks of excessive added sugars.”
The lawsuit featured a “compendium of irrelevant and immaterial scientific reports” about the effects of excessive consumption of sugary soda designed to “distract the court,” added the attorneys, who noted that Clif bars are “solid foods that also contain proteins, fiber, and other complex carbohydrates.”
Consumers expect energy bars to contain sugar, they added, noting that “Clif Bar never affirmatively represented that the products were healthy,” or that they contained no added sugar.
*The case is: Ralph Milan, Sarah Aquino, and Elizabeth Arnold v Clif Bar & Company, 3:18-cv-02354 filed on April 19 in the northern district of California, by the law offices of Jack Fitzgerald PC and Paul K Joseph PC.
How much added sugar is in Clif Bars?
At the time the lawsuit was filed, ‘Classic’ Clif bars contained 17-22g of added sugar, with 25-34% of calories derived from added sugar.
Clif Kid Original Z bars contained 11-12g per serving, with 34-37% of calories from added sugar; Clif Kid ZBars Protein contained 8-9g added sugar (25-28% of calories); Clif Kid ZBars Fruit and Veggie contained 8g added sugar (25% of calories); and Clif Kid filled bars contained 6-7g added sugar (17-22% of calories).
To put this in perspective, yogurts 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, 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.
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