Sugar has been at the center of multiple putative class action lawsuits filed against food companies in recent years as brands have come under pressure to reduce sugars – particularly the added variety – from their products.
‘When pureed, the apple is stripped of insoluble fiber and the liver is no longer protected from the sugar in the food’
In one such case* filed in February (and amended in August) against Sprout Foods Inc – which makes baby food pouches containing pureed fruits and veggies – the plaintiff argued that “the impact of sugar from whole fruits is different than the impact of pureed fruits on the body,” which is “mainly due to the transformation of the fiber in the food.”
Echoing points made by Dr Robert Lustig about the impact of processing on how the body metabolizes foods, the plaintiffs argued: “When pureed, the apple is stripped of insoluble fiber and the liver is no longer protected from the sugar in the food… The World Health Organization (WHO) has also recognized the dangers inherent in pouch products.
“Recognizing that ‘pureeing foods means much of the intrinsic sugar within cell walls of fruit and vegetables is liberated and readily available,’ the WHO—while endorsing the consumption of whole fruits and vegetables—has stated that pureed foods sold in pouches with spouts present several issues, including ‘exposure to high concentrations of free sugars that may quickly be absorbed,’ ‘lower nutrient density,’ and ‘issues with sucking directly from the pouches,’ such as tooth decay from sucking these [sugary] foods across the teeth.”
Judge: At what point does sugar content become harmful?
However, United States District Judge Richard Seeborg in the Northern District of California was not persuaded by this argument.
In an October 21 ruling dismissing the complaint with leave to amend some of the claims, Seeborg said: “Plaintiffs suggest that the products are harmful for children because they contain ‘high amounts of free sugars,’ but they do not place this averment in context by describing at what point ‘high’ sugar content crosses into harmful levels, or even why, in particular, these sugar levels are harmful.
“Plaintiffs also argue that pouch-based foods may be unhealthy for developing children, but they rely for support on speculative research conclusions and hypothetical scenarios to argue these products are harmful — for instance, that pouches ‘may lead to long term health risks,’ or may be harmful if overly relied on by parents, or ‘can be a gateway to bad long-term snacking habits and routine overeating.’ “
He added: “It is unclear from these averments why the products are per se harmful, rather than harmful only after a series of contingencies outside the scope of this case.
“Plaintiffs do little to explain why, even if these averred harms exist, they outweigh any potential benefits of the products — such as protein or fiber intake — such that the products no longer provide any physical health benefits.”
Finally, he said, “The California Court of Appeal has cautioned against permitting food labeling claims that rely on inferential leaps and which could ultimately ‘place almost any advertisement truthfully touting a product’s attributes at issue for litigation.’”
A flurry of settlements: Clif Bar, Kellogg, Mondelēz International, Post Foods
The case is a little unusual in that it focuses on sugar naturally present in foods, and the impact of processing, as opposed to added sugars, which have been the subject of multiple lawsuits in recent years, with varying outcomes.
Some of the highest profile cases were filed plaintiff’s attorney Jack Fitzgerald in 2016, with legal commentators predicting he might face an uphill battle.
However, Fitzgerald has since scored some significant wins, securing label changes and large settlements from leading CPG brands including Clif Bar ($10.5m), Kellogg ($20m), Mondelēz International ($8m), and Post Foods ($15m)
That said, a similar lawsuit vs General Mills was tossed in 2019 after US District Judge Jeffrey S. White said the plaintiffs “cannot plausibly claim to be misled about the sugar content of their cereal purchases because defendant provided them with all truthful and required objective facts about its products, on both the side panel of ingredients and the front of the products’ labeling.
He added: “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.”
*The case is Gillian Davidson et al v Sprout Foods Inc 3:22-cv-01050-RS filed in the US district court, Northern District of California