CSPI’s litigators win better food labeling and more honest marketing, and encourage reforms that benefit consumers.
CSPI has been fighting for consumers’ rights in the food industry for decades. Originating in 2004, CSPI Litigation pioneered the field of food law, and ever since has been wielding the power of litigation, negotiation, and partnership to tackle some of the toughest issues in food and nutrition. There is a cornucopia of deceptive marketing out there about nutrition and health. We exist because consumers deserve good lawyers who fight to put their interests front and center.
Recent litigation highlights
Ginkgo Biloba/Costco and NBTY
In December 2019, the Litigation Department joined an ongoing class action lawsuit against Costco and NBTY, Inc. for misleading brain health claims on their ginkgo biloba dietary supplement, TruNature Ginkgo Biloba with Vinpocetine. The lawsuit alleges that the vast weight of scientific evidence shows that the product does not provide any mental clarity and memory benefits.
In June 2019, the District Court dismissed the lawsuit concluding that, so long as manufacturers have some scientific support for their label claims—no matter how suspect or how heavily outweighed by contrary evidence—federal law permits those claims. In July 2019, the plaintiff appealed that decision to the United States Court of Appeals for the Ninth Circuit.
Believing the District Court’s decision was a dangerous precedent that could strip consumers of their right to hold manufacturers to account for false or misleading supplement labeling, CSPI’s Litigation Department joined the plaintiff’s legal team to assist with the appeal. The plaintiff is also represented by the firms Bonnett, Fairbourn, Friedman & Balint, P.C.; Weltman Law LLC; and Boodell & Domanskis, LLC.
- Complaint (10/31/2016)
- District Court Decision Granting Defendants’ Motion for Summary Judgment (6/25/19)
- Plaintiff’s Opening Appellate Brief (12/03/2019)
Cheez-It Whole Grain Crackers
Represented by CSPI’s Litigation Department and co-counsel Reese LLP and Mehri & Skalet, PLLC, several classes of consumers sued Kellogg Company claiming that it misleadingly labels Cheez-It Whole Grain crackers. According to the Complaint filed in United States District Court for the Eastern District of New York, Cheez-It Whole Grain crackers, which are conspicuously labeled “WHOLE GRAIN,” or in some cases, “made with WHOLE GRAIN,” are primarily made of non-whole grains. The Plaintiffs alleged that Kellogg attempted to capitalize on the consumer trend for whole grains—which grains are more healthful than nutrient-depleted refined grains—without providing the actual benefit.
In May 2017, the District Court concluded that, as a matter of law, no reasonable consumer could be misled by the “WHOLE GRAIN” claims into thinking that the product is made primarily with whole grains, and dismissed the complaint. Because the determination of what a reasonable consumer would perceive is a determination typically made by the trier of fact following discovery, and not from the bench, and because both the FTC and FDA have issued guidance on whole grain marketing that is consistent with the Plaintiffs’ claims of consumer deception, the Plaintiffs immediately appealed that decision to the Court of Appeals for the Second Circuit.
In December 2018, the Second Circuit issued a decision reversing the District Court and holding that “[a] reasonable consumer would likely be deceived” by the “WHOLE GRAIN” claims. The Court made clear that fine print disclosures contained on the Cheez-It packaging did not dispel that misleading message. The decision was a major victory for consumers. The Court sent a strong message to industry that products with “whole grain” or “made with whole grain” claims need to have at least more whole grain than white flour and that consumers are not required to look beyond prominent, misleading representations on the front of a package to discover the truth from the small print.
After the Plaintiffs notified the Court that the parties had settled this matter, the Court on November 7, 2019, entered an Order dismissing the case, with leave to reopen the case expiring in December 2019. The case was not reopened.
- Complaint (5/19/2016)
- District Court Decision (5/31/2017)
- Brief to the Second Circuit (10/06/2017)
- Second Circuit Decision (12/11/2018)
Press Releases and Articles:
- Press Release (5/19/2016)
Algal-900 DHA / CVS
Represented by CSPI and co-counsel Reese, LLP, Mehri & Skalet, LLP, and Kaplan Fox & Kilsheimer, LLP, in February 2016 two plaintiffs filed suit on behalf of a nation-wide class against CVS for false and misleading advertising of its Algal-900 DHA supplement. Part of a broader practice of mislabeling in the $33 billion supplements industry, as detailed by reports of the Office of Inspector General of the Government Accounting Office, extensive reporting in The New York Times, and investigations by the New York Attorney General, CVS labels its Algal-900 product with conspicuous claims of “CLINICALLY SHOWN MEMORY IMPROVEMENT.” The back label claims a clinical finding of “someone 7 years younger.” Not only does established science say otherwise (with the exception of infants), but the Federal Trade Commission already investigated identical claims by CVS’s supplier, determined them to be false and misleading, and barred the supplier from making them. At a cost of $20 per one-month supply, this is a fraud that seniors can do without. The July 2016 issue of AARP The Magazine featured a description of the litigation and interview with the plaintiffs and counsel.
In May 2019, the parties reached a settlement for a nationwide class. The settlement is an excellent result, providing for comprehensive class notice, significant reimbursements, and strong injunctive relief. For example, under the terms of the settlement, class members who purchased the product with a loyalty card or online, or who otherwise have a proof of purchase (such as a receipt), are entitled to a full refund. In September 2019, the court gave its final approval to the agreed nationwide class settlement.
- Complaint (02/01/2016)
- Report and Recommendation Re: Copy Cat Litigation (05/21/2018)
- Copy Cat Litigation Dismissal (06/04/2018)
- Settlement Agreement (5/07/2019)
- Court’s Approval of the Settlement (9/26/2019)
The Coca-Cola Company and the American Beverage Association
CSPI’s Litigation Department, along with other counsel, was instrumental in developing this lawsuit filed on behalf of Pastors William H. Lamar IV and Delman L. Coates and the nonprofit Praxis Project. The lawsuit contends that the Coca-Cola Company and its trade association, the American Beverage Association (“ABA”), are engaged in an unlawful campaign of deception to mislead and confuse the public about the health harms related to sugar drinks. On January 22, 2019, the ABA was dismissed from the suit because it was found not to be a merchant under the DC Consumer Protection Procedures Act (“DCCPPA”) and its SLAPP Motion was dismissed.
Coca-Cola’s advertising campaign attacks the credible science linking the consumption of sugar drinks to obesity, type 2 diabetes, and heart disease while promoting lack of exercise as the primary driver of these diseases, according to the suit. The campaign also leads consumers to believe that all calories are the same, when science indicates that sugar drinks play a distinct role in obesity and related epidemics.
On October 1, 2019, the judge issued an Order finding that at least one of the plaintiffs has standing to bring this challenge under the DCCPPA, that a three-year statute of limitations applies (clarifying which statements made by Coke are in the case), and that the Plaintiffs may file an amended complaint. The Order also denied Coke’s SLAPP motion as moot. Once these issues were decided, and knowing that Plaintiffs were represented by three firms and organizations and that the case would continue, CSPI’s Litigation Department decided to and did withdraw from the case on November 1, 2019. On November 15, 2019, the Plaintiffs filed an Amended Complaint.
The plaintiffs are represented by the Public Health Advocacy Institute and the law firms of Reese LLP and Kaplan Fox & Kilsheimer, LLP. The case is pending in the Superior Court of the District of Columbia.
- Complaint (7/13/17)
- Coca-Cola Special Motion to Dismiss and for Attorneys’ Fees (SLAPP Motions) Against Plaintiffs (11/13/2017)
- American Beverage Association Special Motion to Dismiss and for Attorneys’ Fees (SLAPP Motion) Against Plaintiffs (11/13/2017)
- Coca-Cola Motion to Dismiss (11/13/2017)
- American Beverage Association Motion to Dismiss (11/13/2017)
- Plaintiffs’ Opposition to American Beverage Association’s Motion to Dismiss (1/30/2018)
- Plaintiffs’ Opposition to American Beverage Association Special Motion to Dismiss and for Attorneys’ Fees (SLAPP Motion) Against Plaintiffs (1/30/2018)
- Plaintiffs’ Opposition to Coca-Cola Motion to Dismiss (1/30/2018)
- Plaintiffs’ Opposition to Coca-Cola Special Motion to Dismiss and for Attorneys’ Fees (SLAPP Motion) Against Plaintiffs (1/30/2018)
- Order on ABA’s Motion to Dismiss and SLAPP Motion (1/22/2019)
- Order on Coke’s Motion to Dismiss and SLAPP Motion (10/01/2019)
Press Releases and Articles:
- CSPI Video Press Release (7/13/17)
- CSPI Press Release (7/13/17)
- Washington Post: ‘We’re losing more people to the sweets than to the streets’: Why Two Black Pastors are Suing Coca-Cola (7/13/2017)
- CBS News: Coca-Cola Gets Served a Lawsuit by 2 Pastors (7/14/2017)
- WAMU 88.5: Local Pastors Take Coca-Cola To Court (7/18/2017)
Cheerios Protein / General Mills
Represented by CSPI and co-counsel Reese, LLP and Kaplan Fox, LLP, three private plaintiffs filed a class action suit against General Mills in late 2015 alleging that it falsely and misleadingly markets Cheerios Protein as a high-protein and healthful alternative to original Cheerios. Unlike other Cheerios products, such as Chocolate Cheerios or Ancient Grain Cheerios, “protein,” though added to the name, does not distinguish Cheerios Protein from original Cheerios… sugar does. Cheerios Protein has 16 to 17 times more sugar than the original, and only negligibly more protein. In fact, if you compare calorie-comparable serving sizes of the two, the protein difference is basically non-existent, and the sugar ratio soars even higher. The December 2015 issue of The Atlantic featured the litigation in an article, Breakfast Cereal’s Last Gasp, as did a segment of Good Morning America.
- Complaint (11/09/2015)
- Decision Denying General Mills’s Motion to Dismiss the Complaint (08/10/2016)
- Order Granting in Part and Denying in Part Motion to Dismiss (02/06/2017)
- Settlement Agreement (07/27/2018)
Press Releases and Articles
- Press Release (11/09/2015)
- Good Morning America segment (11/10/2015)
- The Atlantic Article (11/27/2015)
- Press Release (07/27/2018)
- Star Tribune Article (07/27/18)
On March 23, 2017, CSPI filed a motion for leave to file an amicus objection, and an objection, to the proposed settlement of a class action accusing Quorn of deceptive marketing. In our view, the proposed settlement, in Birbrower v. Quorn Foods, Inc., would judicially condone continued deceptive advertising of Quorn by using the euphemistic term mycoprotein to disguise that the main ingredient of Quorn is mold, in addition to other serious misleading labeling practices. We are concerned about transparent labeling of Quorn products because CSPI (alone) has received over 2,500 complaints about mold reactions to this product, many quite serious including one death.
1. Memorandum in Support of Objection (3/23/17)
Naked Juice / PepsiCo
Represented by CSPI and co-counsel Reese LLP, several classes of consumers sued PepsiCo claiming that its Naked Juice line of beverages are marketed and labeled in a false and misleading manner under consumer protection laws. Products like Naked’s Kale Blazer, for example, claim to be comprised predominantly of kale, “veggies," and “dark leafy goodness.” Indeed, the label touts that “kale is the king of the garden. And, when it’s blended with cucumber, spinach, celery and a pinch of ginger, you get a royal roundtable of yum. Long live greens.” But Naked Juices, including Kale Blazer, are made predominantly of sugary fruit juices, not dark leafy vegetables. And while they are advertised as having “no added sugars,” they often have as much sugar by way of apple or like juices as a can of Pepsi, or more. The Naked truth may not be so naked after all.
- Complaint (10/04/2016)
- Stipulation of Settlement Regarding Naked Juice Product Labeling (02/14/2017)
- Good Housekeeping Article (10/05/2016)
- Associated Press: Naked Drinks to Tweak Labels to Make Ingredients Clearer (02/21/2017)
- Consumerist: PepsiCo To Revise Labels On Naked Juice Drinks Following Lawsuit (02/22/2017)
A few highlights from past litigation
In early 2015, CSPI Litigation undertook an investigation of misleading labeling in the infant and toddler foods industry. CSPI found that consumers were commonly misled into believing they purchased nutritious foods, paying a premium price, because of names with fancy or healthy ingredients like Green Bean, Pear & Greek Yogurt; Kale Apple Mango; and Broccoli Red Lentil Oat. In reality, many of the infant and toddler food products were not especially nutritious and were comprised predominantly of cheaper, sugar-laden ingredients like apple puree. By contrast, kale, quinoa, and the like, were often only minor ingredients. CSPI Litigation’s investigation was featured on Good Morning America, and led to a pioneering agreement with Plum Organic’s (Campbell’s) that requires the name of an infant food, and the imagery on the front packaging, to reflect predominant ingredients. CSPI Litigation’s work continues actively in this area.
- Plum Organics / Campbell’s Demand Letter (05/11/2015)
- Plum Organics Settlement Agreement (10/21/2015)
- GMA link (05/12/2015)
Vitaminwater / Coca-Cola
Represented by CSPI, co-counsel Reese LLP and others, two classes of California and New York consumers sued Coca-Cola in 2009 for false and misleading advertising of its vitaminwater line of products. When the suit was initiated, vitaminwater labels bore claims like “vitamins + water = what’s in your hand,” “vitamins + water = all you need,” and “this combination of zinc and fortifying vitamins can ... keep you healthy as a horse,” or “... support optimal metabolic function.” A bottle of vitaminwater has, on average, 8 teaspoons of sugar, or 32 grams, however. The American Heart Association recommends a daily ceiling of six teaspoons of sugar per day for an adult female, nine for men, and proportionately less for children depending on weight. So consumers are getting more than vitamins and water, or a serving of health.
In March 2016, following final approval of their agreement by the Court, the parties settled the litigation. Pursuant to settlement terms, Coca-Cola is now prohibited from using the above and like health labeling claims, and will indicate conspicuously on front of label packaging that vitaminwater is “with sweeteners” and “120 calories” – not just vitamins and water.
- Initial Press Release (01/15/2009)
Airborne / Cold Remedy
In 2007, CSPI joined as counsel to a class action against Airborne, a dietary supplement that was marketed as a “natural cold remedy” that “provides 3 hours of protection against the common cold.” The label and other marketing also claimed clinical support. Citing the lack of scientific evidence to substantiate this, and the potential harm in digesting excessive amounts of Vitamin A (contained in the supplement), the plaintiffs ultimately obtained a settlement for both injunctive relief – barring use of these claims prospectively – and monetary damages for the class in the amount of $23.3 million.
Kellogg / Kid-targeted Advertising
In 2006, with co-counsel Mehri & Skalet, PLLC, CSPI threatened to sue Kellogg for marketing junk foods (sugary cereals, Pop Tarts, and more) to kids. Following negotiations, in 2007, Kellogg agreed to adopt minimum nutrition standards for marketing to children. Numerous other companies followed suit.
- Settlement Agreement (06/14/2007)
- Press Release – Kellogg Makes Historic Agreement (06/04/2007)
Kentucky Fried Chicken and Burger King / Trans Fat
In 2006, on behalf of private plaintiffs, CSPI Litigation filed suit against Kentucky Fried Chicken (“KFC”) based on its use of trans fat in its foods and failure to warn customers of the risks. Finally banned by the Food and Drug Administration in 2015 because of its connection to coronary heart disease, at the time, KFC’s Extra Crispy Combo contained 15 grams of trans fat. Shortly after the suit was filed, KFC agreed to cease its use of trans fat in cooking, and the suit was withdrawn.
Similarly, CSPI sued Burger King in 2007. Although dismissed on procedural grounds, Burger King quickly agreed to halt its use of trans fat in cooking as well.