False Ad Class Action Filed Over ‘Gluten-Free’ Cheerios

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Last Friday, two California consumers filed a class action lawsuit in federal court that is believed to be the first lawsuit against General Mills alleging false advertising of their gluten-free Cheerios.

Plaintiffs Keri Van Lengen and Deborah Nava claim they purchased regular Cheerios and Honey Nut Cheerios after seeing advertising that these products were gluten free. According to the Cheerios class action lawsuit, they later learned that 1.8 million boxes of the purportedly gluten-free cereals were removed from supermarket shelves because the manufacturer accidentally mixed in gluten-containing wheat flour.

“Defendants used the ‘gluten free’ label to induce plaintiffs and class members to purchase the Cheerios products,” the Cheerios class action lawsuit alleges. “Had defendants not included the ‘gluten free’ statement on the Cheerios products, plaintiffs and class members would not have purchased the Cheerios.”

General Mills has stated that the affected boxes of cereal came from their manufacturing facility located in Lodi, Calif. The company claims that only the regular and Honey Nut varieties of Cheerios marked gluten free were affected. These products were reportedly distributed to locations nationwide.

Shortly after the tainted “gluten free” Cheerios were purchased throughout the country, individuals with Celiac disease, gluten sensitivities and wheat allergies began reporting adverse reactions from eating the cereal they believed to be safe for their medical conditions, the gluten-free Cheerios class action lawsuit alleges.

According to 2013 labeling laws, a product can only be labeled gluten free if it contains up to 20 parts per million of gluten. In response to the complaints of adverse reactions, the U.S. Food and Drug Administrations began testing samples of gluten free Cheerios. Some samples contained up to 43 parts per million, over double of the allowed amount to qualify as gluten free, the Cheerios class action lawsuit says.

The plaintiffs allege that General Mills violated state consumer protection laws (which incorporate federal food regulations) including California’s Unfair Business Practices Act, Unfair Competition Law and Consumer Legal Remedies Act. The Cheerios class action lawsuit also claims unjust enrichment and breach of express warranty.

The plaintiffs claim that General Mills took advantage of the increasing consumer interest in gluten-free products and saw the potential for an increase in sales. The company started a large marketing campaign targeting a group of consumers who were looking for more gluten-free product options.

On behalf of themselves and the potential Class, the plaintiffs have asked for full refunds of the purchase price of their products by way of a disgorgement of profits from General Mills’ supposedly gluten-free Cheerios.

The potential Class in the gluten free Cheerios class action lawsuit would include any individuals who purchased Cheerios or Honey Nut Cheerios that were advertised as gluten free but actually contained gluten. The boxes of cereal in question allegedly represent about 1 percent of all cereal packages marked with “gluten free” on the label.

In addition to seeking Class certification, the plaintiffs are seeking compensatory, exemplary, punitive and statutory damages plus interest, a refund of the purchase price of the products, disgorgement of profits, restitution and an order to desist from further distribution, marketing and sales of non-compliant gluten-free Cheerios.

The plaintiffs are represented by John R. Parker Jr. of Kershaw Cutter & Ratinoff LLP.

The Gluten Free Cheerios Class Action Lawsuit is Keri van Lengen, et al. v. General Mills Inc., et al, Case No. 2:15-at-01128, in the U.S. District Court for the Eastern District of California.