Cheerios Protein Consumers Fight Motion to Dismiss Class Action

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Cereal consumers alleging General Mills falsely markets its Cheerios Protein cereal as having significantly more protein than regular Cheerios are fighting a motion to dismiss a class action lawsuit.

Lead plaintiffs allege in their class action lawsuit that General Mills deceptively advertises Cheerios Protein as containing significant amounts of protein, when the cereal actually only contains a little bit more protein and significantly more sugar than regular Cheerios.

General Mills argued that the plaintiffs’ claim for injunctive relief should be dismissed because the consumers said they would never buy the cereal again.

The buyers of Cheerios Protein fought back, arguing that they would buy the cereal if it wasn’t deceptively marketed.

“Defendant contends plaintiffs still lack standing to pursue injunctive relief because they have not alleged they will purchase the same deceptively marketed product General Mills continues to sell in a misleading fashion. This tautological argument thwarts the clear intent of the court’s order,” pointed out the plaintiffs in their opposition to dismissal. “Plaintiffs do not have to intend to purchase a deceptively marketed product repeatedly to have standing for injunctive relief purposes. Alleging standing is not meant to be a Catch-22 game.”

The class action survived a motion to dismiss in August; however, the plaintiffs’ claims for injunctive relief were trimmed as “nonactionable puffery.” The buyers were given opportunity to further argue their claims for injunctive relief.

General Mills stated that the plaintiffs’ attempts to fix their complaint and revive claims for injunctive relief should be completely dismissed.

The cereal maker argued that the plaintiffs have to establish that they would buy the current version of the cereal, not a changed one, in order to maintain their claims for injunctive relief.

The class action plaintiffs countered, arguing that in many cases, including one centered around SeaWorld’s treatment of orca whales, the plaintiffs do not have to show that they will continue to use the product or service at issue.

“Under this long-standing reasoning, and notably one that comports with the important public policy and legislative intent behind class actions and the consumer protection statutes at issue here, while plaintiffs Coe and Castro may not purchase the same Cheerios Protein products they purchased previously, because they are now aware the product is not fortified with materially more protein but instead is laden with sugar, they are entitled to pursue injunctive relief on behalf of all consumers in order to protect them from defendant’s alleged false advertising,” argued the plaintiffs in their opposition.

The plaintiffs are represented by Laurence D. King and Linda M. Fong of Kaplan Fox & Kilsheimer LLP, Maia Kats 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.