Litigation over Kellogg’s deceptive marketing of “Whole Grain” Cheez-It crackers to advance

Whole grain Cheez-It cracker box

Federal appeals court reverses district court decision granting Kellogg’s motion to dismiss

A federal appeals court has cleared the way for a class-action lawsuit alleging misleading labeling and marketing of Kellogg’s “Whole Grain” Cheez-It crackers to proceed. Despite the Cheez-It Whole Grain label, the crackers are predominantly white flour. The United States Court of Appeals for the Second Circuit found that the District Court for the Eastern District of New York erred when it granted Kellogg’s motion to dismiss the case in 2017.

Small-print ingredients lists on the side panel of Cheez-It boxes disclose that “enriched white flour” is the main ingredient, and Nutrition Facts labels on the side panel give the product’s weight in grams. But those disclosures don’t “adequately dispel the inference communicated by the front of the package that the grain in ‘whole grain’ crackers is predominantly whole grain,” the Second Circuit found. The court adopted the reasoning of the Ninth Circuit Court of Appeals, which earlier held that consumers are entitled to rely on front-of-package claims, and that they should expect that Nutrition Facts labels and ingredients lists confirm other claims made on packages. Importantly, disclosing the number of grams of whole grain on the front of the package, as Kellogg’s does when it boasts “5 g of whole grain,” does not cure the potential deception that the crackers are predominantly whole grain because it “fails to communicate that the quantity of enriched white flour exceeds the quantity of whole grain,” noted the Second Circuit.

“Consumers should not be required to research the facts in the fine print to find that the claims made in big print aren’t true,” said Maia Kats, litigation director for the nonprofit Center for Science in the Public Interest, which filed the case along with the firms Reese LLP and Mehri & Skalet in 2016. “The food industry needs to get the message that ‘whole grain’ products need to have more whole grain than white, refined flour. We look forward to the litigation’s moving forward in light of the Second Circuit’s ruling.”

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