General Mills Seeks to End Kix Labeling Class Action Lawsuit

On Oct. 16, General Mills asked a judge to enter summary judgment in its favor and put an end to a class action lawsuit alleging the company deceived consumers by using the phrase “Made with All Natural Corn,” because the company uses bioengineered corn in its Kix cereal.

General Mills said in its brief that the Kix advertising is protected by the First Amendment. The class action plaintiffs argued in a previous court filing that the First Amendment does not apply to lawsuits between private parties, because there is no “state action.” The plaintiffs asserted that if the court grants the motion by General Mills based on the First Amendment, it “would effectively repeal all state consumer protection statutes.”

In response, General Mills stated: “Claims of private plaintiffs using the judiciary to try to stifle speech are subject to First Amendment defenses.” Based on First Amendment protections, General Mills asked the court to apply a higher standard to the consumer protection claims in the Kix all natural class action lawsuit. “To classify commercial speech as ‘inherently misleading,’ Plaintiffs must show that it misleads consumers in all instances,” General Mills argued.

General Mills claimed that the class action lawsuit is an attempt to ban speech in violation of the First Amendment, because the plaintiffs cannot prove that the Kix advertising is inherently misleading. In support of this claim, General Mills cited to a survey of Kix consumers, and said that “no more than 2% of Kix purchasers believed the phrase had any relation to bioengineering.”

The Kix all natural class action plaintiffs have attacked the methodology of that study, and cited numerous other surveys of consumers that researched the definition of “natural.” General Mills defended its survey in its most recent court filing, and argued that the plaintiff’s studies do not apply to the Kix advertising and Kix consumers in this specific class action lawsuit.

General Mills also argued that use of the phrase “natural” is simply a matter of opinion, and it “has no fixed meaning.” General Mills declared that “there is no verifiable standard or definition of all natural.” General Mills argued that its use of the term “all natural” is not a misstatement of fact, and therefore cannot be misleading.

The Kix all natural class action plaintiffs also recently filed a summary judgment motion on the legal meaning of the term “all natural.” In that motion, the plaintiffs claimed that bioengineered corn cannot be considered “natural” based on prior decisions from the Supreme Court. The plaintiffs cited Supreme Court cases which describe bioengineered corn as being artificial and synthetic.

The plaintiffs are represented by Bruce Daniel Greenberg of Lite DePalma Greenberg LLC and Henry J. Kelston of Milberg LLP.

The Kix All Natural Corn Class Action Lawsuit is Bevans v. General Mills Inc., Case No. 2:12-cv-00239, in the U.S. District Court for the District of New Jersey.

UPDATE: On June 13, 2016, a New Jersey federal judge ordered a stay on the 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.