General Mills Continues to Face Claims in Cheerios Protein Class Action

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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.

U.S. District Judge Thelton Henderson allowed the General Mills class action lawsuit to go forward, but not without trimming away some of the issues.

Among the claims dismissed is the plaintiffs’ claim for injunctive relief, which Judge Henderson gave them an opportunity to amend.

General Mills first argued that the plaintiffs’ claims under state law are expressly preempted by the federal Nutrition Labeling and Education Act.

Judge Henderson disagreed. He found the plaintiffs’ claims fall within a catch-all provision in the NLEA that saves state claims from preemption if they are identical to certain federal requirements.

The judge also rejected an argument by General Mills that a reasonable consumer would not be deceived by the Cheerios Protein label.

He noted that although the front of the box contains representations that address the cereal’s sugar content, those representations are presented less prominently and in a smaller font than those addressing the protein content.

The difference makes it possible that a reasonable consumer could be deceived, the judge determined, making dismissal at this stage inappropriate.

Judge Henderson did dismiss the plaintiffs’ claims based on label statements that say “a great start to your day,” “start your school day right,” and “kick-start your day,” with “appealing photographic images depicting healthy and successful kids and parents.”

The judge agreed with General Mills that these representations are “non-actionable puffery” – what the Ninth Circuit has described as “general assertions of superiority rather than factual misrepresentations.”

The judge also dismissed plaintiffs’ claim for injunctive relief because they did not allege any intent to purchase Cheerios Protein in the future.

Judge Henderson dismissed that claim without prejudice, allowing the plaintiffs an opportunity to fix the problem by amending and resubmitting their pleadings.

This General Mills class action lawsuit began last fall. Plaintiffs Nancy Coe, Tori Castro and Pamela Mizzi alleged that Cheerios Protein cereal is mislabeled.

They say the cereal’s packaging could mislead consumers into thinking the product contains significantly more protein than other cereals, when in fact it contains only slightly more protein than regular Cheerios and vastly more sugar.

Based on the two cereals’ nutrition labels, and accounting for a difference in serving size, plaintiffs allege that one serving of Cheerios contains 6 grams of protein, while a serving of Cheerios Protein contains at most 6.7 grams.

At the same time, the sugar content of Cheerios Protein can be as much as 17 times the content of regular Cheerios, the plaintiffs claim.

In opposing an earlier attempt at dismissal by General Mills, the plaintiffs said the company was trying to change the issues in the case.

General Mills allegedly tried to raise an argument about the quality of the protein in Cheerios Protein, the plaintiffs said. They reiterated that their claims take issue not with the quality of the ingredients but the allegedly deceptive nature of the labeling.

Representing the plaintiffs are attorneys 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 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.