General Mills Seeks Dismissal of Cheerios Protein Class Action

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On Wednesday, General Mills Inc. urged a California federal judge to dismiss a class action lawsuit alleging the labels on its Cheerios Protein cereals do not adequately inform consumers about the amount of protein and sugar in the product.

General Mills filed the reply in support of its motion to dismiss the class action lawsuit, which the company had filed back in January. The plaintiffs fought back against the dismissal attempt in March, arguing that they are protected under state and federal consumer protection laws that specifically address false and/or misleading labels.

According to General Mills, the plaintiffs’ opposition motion “concedes the legal issues requiring dismissal of their Complaint on federal preemption grounds” and therefore the Cheerios class action lawsuit should be dismissed.

General Mills accuses the plaintiffs of trying to avoid preemption by arguing that their allegations that the name Cheerios Protein is “false or misleading,” the Nutrition Labeling Education Act provides an exemption to the preemption provision.

“This argument is illogical and incorrect,” and several courts have already rejected similar arguments, according to General Mills.

The Cheerios manufacturer also argues that the plaintiffs’ allegation that the name Cheerios Protein is misleading to a reasonable customer also can’t stand because they are “non-actionable puffery” that don’t state a claim.

General Mills asserts that its Cheerios Protein cereal meets the regulatory standard required to make an “implied nutrient content” claim because it “provides 10% of the Daily Value from a high-quality protein source and is thus ‘consistent with the definition for’ a ‘good source’ claim.” Therefore, the plaintiffs’ claims attacking the protein label are preempted by federal law.

General Mills asked the judge to dismiss the entire Cheerios Protein class action lawsuit with prejudice. If this motion is granted, the plaintiffs will not be allowed to file an amended complaint.

The Cheerios Protein class action lawsuit was initially filed in November by a group of plaintiffs who allege General Mills has deceived consumers by leading them to believe the product is a healthier alternative to the original Cheerios cereal. However, Cheerios Protein allegedly contains only seven-tenths of a gram more protein than the original yellow box Cheerios cereal.

The plaintiffs also allege Cheerios Protein cereal contains significantly more sugar than the original Cheerios cereal. They claim that they paid a premium for the Cheerios Protein cereal under the belief it was a healthier breakfast option. They also state that they would not have purchased the product if not for the allegedly false and misleading label.

The plaintiffs are represented by Laurence D. King and Linda M. Fong of Kaplan Fox & Kilsheimer LLP, Maia Kats and William Thanhauser of the Center for Science in the Public Interest, and Michael R. Reese of Reese LLP.

The Cheerios Protein Class Action Lawsuit is Nancy Coe, et al. v. General Mills Inc., Case No. 3:15-cv-05112, in the U.S. District Court for the Northern District of California.

UPDATE: On Aug. 10, 2016, General Mills will continue to face a false advertising class action lawsuit over Cheerios Protein, following a decision by a federal judge to dismiss some of the plaintiffs’ claims and to let the rest proceed.

UPDATE 2: On Oct. 21, 2016, cereal consumers alleging General Mills falsely markets its Cheerios Protein cereal as having significantly more protein than regular Cheerios fight a motion to dismiss a class action lawsuit.