Greek Yogurt False Advertising Lawsuits Belong to FDA, Judge Says

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Greek Yogurt False Advertising Lawsuits Belong to FDA, Judge Says 

By Sarah Pierce

A federal judge yesterday dismissed a class action lawsuit accusing General Mills and Yoplait of selling Greek yogurt that is “neither yogurt nor Greek,” saying the matter should be resolved by the U.S. Food and Drug Administration and not the courts.

Minnesota District Judge Susan Richard Nelson tossed the proposed Yoplait Greek yogurt class action lawsuit in which plaintiff Martin Taradejna claimed the companies knowingly misrepresented the quality of their product by using a cheap additive that is not among the permissible ingredients of yogurt set forth under FDA regulation. Judge Nelson said the FDA should settle the debate over what constitutes Greek yogurt and help end the growing number of similar false advertising class action lawsuits pending in other courts.

“The increasing volume of this litigation creates the potential for inconsistent judicial rulings,” Judge Nelson wrote in her opinion Monday. “This underscores the importance of promoting uniformity by referral of this matter to the FDA.”

Numerous Greek yogurt class action lawsuits have been filed in recent months alleging yogurt manufacturers are duping consumers into paying more for a product that doesn’t deliver the promised beneficial attributes of Greek yogurt, which is lower in fat and contains twice as much protein. [See “Yoplait Greek Yogurt Class Action Lawsuit” and “Cabot Greek Yogurt Isn’t Greek, Class Action Lawsuit Says.”]

That’s because the companies are allegedly skipping the authentic way of making Greek yogurt, which involves straining the whey to create a thicker, creamier product, and instead thicken it with MPC – a food additive that is not on the FDA’s approved list of additives “Generally Regarded as Safe,” the Greek yogurt false advertising class action lawsuits say.

As a result, General Mills and other companies are misbranding their products under the federal Food, Drug and Cosmetic Act (FDCA) and knowingly marketing the product to consumers as something it’s not.

General Mills defended its use of MPC in Greek yogurt by saying the FDA left the door open for MPCs to be used by staying a 1981 provision in its yogurt definition that would have limited “other optional ingredients.” The company also cited more recent FDA comments and a proposed 2009 rule to support the use of MPCs in yogurt.

In light of the pending 2009 proposed rule and the fact that the FDA has more scientific and nutritional expertise, Judge Nelson decided to leave the question of yogurt’s proper identity in the agency’s hands.

Two Yoplait Greek yogurt false advertising class action lawsuits pending in California (Gallant v. General Mills and Hawkins v. General Mills) have been awaiting the outcome of the Taradejna case. Plaintiffs in those class action lawsuits now have 21 days to amend their complaints.

Updated December 11th, 2012

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