Kix Cereal GMO Lawsuit On Hold For FDA Review

A New Jersey federal judge has ordered a stay on a putative class action lawsuit alleging that General Mill’s Kix brand cereals contain bioengineered corn instead of “all natural” ingredients as indicated on its packaging.

U.S. District Court Judge Kevin McNulty issued the action for a period of 120 days in order to consider any developments that may follow the U.S. Food and Drug Administration’s evaluation of public input regarding the matter.

In his two-page order, Judge McNulty stated that in November 2013, following the lead of other similar court cases, he paused the case to defer to the FDA for an administrative determination on what circumstances food products containing bioengineered corn may be labeled “natural.”

However, the FDA declined to make a determination on the issue at that time and Judge McNulty reopened the case in January 2014.

But now in light of the growing public concern over “all natural” or “natural” labeled products, the FDA began requesting comments this past November and up until May relating to these terms on food products. As such, both parties in this case have filed supplemental briefs addressing how the recent FDA action relates to the General Mills Kix Cereal class action.

Based on the parties’ submissions to the FDA, Judge McNulty ruled to stay the action, stating that “the expertise of the FDA is critical.”

The case is paused until Oct. 11, 2016 when at that time the parties have been instructed to update the Court on any relevant developments and whether a further extension of the stay is warranted.

Plaintiff Christina Beavens of New Jersey issued the class action lawsuit against General Mills alleging its Kix cereals do not contain all natural corn as marketed and advertised.

The complaint, which was originally filed in January 2012 and amended in June 2013, alleges that General Mills misled consumers by falsely labeling Kix cereals as being “made with All Natural Corn” when they are actually made with unnatural corn ingredients, including GMO corn plants whose genes have been altered by scientists in a lab.

The class action lawsuit states that General Mills violated the Magnuson-Moss Act, New Jersey Consumer Fraud, Unjust Enrichment, and breach of Express Warranty for marketing Kix cereal as “all natural” despite containing genetically modified corn.

In October 2015, both parties filed motions for summary judgment – a procedure in which a judgment is entered by a court for one party and against another party summarily, without a full trial.

In its motion for summary judgment, General Mills argued that its advertising is protected by the First Amendment and that the phrase “natural” is an opinion and has no “fixed meaning.” Additionally, General Mills urged Judge McNulty to exclude testimony from the consumers’ expert witness, stating that the economist was not qualified to speak about GMO science and its relation to cereal.

On the flip side, the consumers argued that bioengineered corn cannot be considered “natural.” They also motioned to dismiss testimony from General Mills’ expert witnesses, claiming that geneticist and patent expert could not offer a conclusive definition of the term “natural” and were unqualified to dispute the consumers’ legal arguments.

The stay also terminates both sides’ motions for summary judgment and motions to strike, but they can be renewed or filed again afterward, Judge McNulty said.

The consumers are represented by Bruce D. Greenberg of Lite DePalma Greenberg LLC and Henry J. Kelston and Ariana Tadler of Milberg LLP.

The General Mills Kix Cereal False Labeling Class Action Lawsuit is Bevans v. General Mills Inc., Case No. 2:12-cv-00249, in the U.S. District Court for the District of New Jersey.