Cheez-It Whole Grain Class Action Lawsuit Heads Back to Federal Court

A Cheez-It whole grain false advertising class action lawsuit will be sent back to federal court, according to a recent decision by the Second Circuit.

The makers of the popular cheese-flavored cracker were hit with the class action lawsuit over allegations that the company misrepresented the amount of whole grain in the product.

According to the plaintiffs, Cheez-Its were advertised as “whole grain,” but whole grains were only the second or third ingredient in the product.

Additionally, a serving size reportedly only contained between five and eight grams of whole grains.

A New York federal court tossed the Cheez-It whole grain false advertising class action lawsuit, ruling that the labeling was not deceptive to consumers.

The makers of Cheez-It argued that because it used statements like “made with whole grain” or pointed out the grams of whole grain in each serving, reasonable consumers would not be fooled.

The Second Circuit reversed the ruling, however.

“Plaintiffs’ core allegation is that the statements ‘WHOLE GRAIN’ and ‘MADE WITH WHOLE GRAIN’ are misleading because they communicate to the reasonable consumer that the grain in the product is predominantly, if not entirely, whole grain,” noted the order from the Second Circuit.

“Contrary to the reasonable expectations communicated by the large, bold‐faced claims of ‘WHOLE GRAIN,’ however, the grain in the product is predominantly enriched white flour.

The Second Circuit found that the Cheez-It whole-grain false advertising class action plausibly alleged that the plaintiffs and other consumers were deceived by the advertising.

“While the disclosures on the front of the box relied on by the district court (‘MADE WITH 5G [OR 8G] OF WHOLE GRAIN PER SERVING’) do set forth accurately the amount of whole grain in the crackers per serving, they are nonetheless misleading because they falsely imply that the grain content is entirely or at least predominantly whole grain, whereas in fact, the grain component consisting of enriched white flour substantially exceeds the whole grain portion,” noted the order.

The Second Circuit also gave short shrift to a contention by Kellogg, the maker of Cheez-It, that because they disclosed the amount of whole grain, their packaging was not deceptive.

“The rule that defendant contends emerges from these district court decisions [cited in its appellate brief] — that, as a matter of law, it is not misleading to state that a product is made with a specified ingredient if that ingredient is in fact present — would validate highly deceptive advertising and labeling,” the panel said. “Such a rule would permit defendant to lead consumers to believe its Cheez‐Its were made of whole grain, so long as the crackers contained an iota of whole grain, along with 99.999% white flour.”

Kellogg will have to face the class action allegations in federal court again.

The plaintiffs are represented by Michael R. Reese and George V. Granade of Reese LLP.

The Cheez-It Whole Grain False Advertising Class Action Lawsuit is Kristen Mantikas, et al. v. Kellogg Co., Case No. 17-2011, in the U.S. Court of Appeals for the Second Circuit.