In The Courts

In The Courts

In March 2021, CSPI and a coalition of food safety, healthcare, and public health advocacy organizations, and government and Indian tribe entities filed a lawsuit against the Department of Health and Human Services (HHS) over the Trump-era Sunset Rule.   

Recent litigation highlights

Sunset Rule/HHS

The logo of the U.S. Department of Health and Human Services

In March 2021, CSPI and a coalition of food safety, healthcare, and public health advocacy organizations, and government and Indian tribe entities filed a lawsuit against the Department of Health and Human Services (HHS) over the Trump-era Sunset Rule.   

The rule—proposed by the outgoing Trump administration the day after the November 2020 election and finalized the day before President Biden’s inauguration—adds automatic expiration dates to more than 18,000 regulations issued by HHS and its agencies, such as FDA, CDC, and the Centers for Medicare and Medicaid Services.

HHS administers a broad range of statutory programs that impact nearly every aspect of the American healthcare system, food and drug manufacturing, and social services systems. These programs operate pursuant to regulations that govern, for example:

  • food safety,
  • health insurance,
  • hospitals and clinics
  • pharmaceuticals and vaccines,
  • mental health treatment,
  • Medicare and Medicaid,
  • public health emergency prevention and preparedness,
  • protections for children and the elderly, and
  • much more.

The rule will eliminate nearly all HHS regulations, starting in five years, unless the agency diverts attention away from its crucial activities, including those responding to the COVID-19 pandemic, to conduct an unprecedented, time consuming and resource intensive review of nearly every regulation. Among other critical regulations, the Sunset Rule will trigger automatic rescission of thousands of FDA regulations, including food safety regulations that give consumers confidence that they can purchase food without contracting a deadly foodborne disease. 

The lawsuit seeks to vacate the Sunset Rule and prevent the substantial harm it will cause to public health. The lawsuit alleges that the Sunset Rule violates both the Administrative Procedure Act and the Regulatory Flexibility Act.

On March 18, 2021, in response to our lawsuit, HHS issued a one-year stay of the effective date of the Sunset Rule. In issuing the stay, HHS stated that it “believes that the Court could find merit in some of Plaintiffs’ claims” and acknowledged that the lawsuit calls into question whether the rule is “consistent with the policies and goals of the current administration, both in terms of the appropriate role of regulatory oversight of the health care industry and necessary engagement with the public, including tribal organizations.”

On April 22, 2021, the Court stayed the action for 90 days.  In the parties’ joint request for the stay, HHS indicated that in the coming months, it anticipates issuing a notice of proposed rulemaking repealing the SUNSET Rule.  The parties requested the stay as HHS continued its review of the Rule in light of Plaintiffs’ claims raised in the litigation and evaluated its litigation position.

In addition to CSPI, the other Plaintiffs are the County of Santa Clara, California; California Tribal Families Coalition; National Association of Pediatric Nurse Practitioners; American Lung Association; and Natural Resources Defense Council. CSPI is represented by Democracy Forward and CSPI’s Litigation Department.

Key Legal Documents

  1. Complaint (03/09/2021)
  2. FDA Stay of Sunset Rule (03/18/2021)

Press Releases

  1. Press Release (03/09/2021)
  2. Press Release Announcing Stay of Rule (03/19/2021)
  3. Press Release Announcing Potential Repeal of Sunset Rule (04/23/2021)

San Francisco Sugary Drink Warning

A billboard advertisement that reads

In February 2021, CSPI and other public health groups submitted an amicus brief in support of San Francisco in litigation brought against its proposed warning on sugary drink advertisements. The amicus brief furthers CSPI’s extensive work to promote healthy beverage choices and, in particular, advocacy for sugary drink health warnings.

San Francisco’s ordinance requires that certain sugary drink advertisements in the City bear the following warning: “SAN FRANCISCO GOVERNMENT WARNING: Drinking beverages with added sugar(s) can cause weight gain, which increases the risk of obesity and type 2 diabetes.” The ordinance requires the warning to occupy at least 10 percent of a covered advertisement.

An earlier version of San Francisco’s sugary drink warning ordinance, which contained different text and was required to occupy at least 20 percent of advertisements, was struck down by the Ninth Circuit Court of Appeals, sitting en banc, in February 2020. The Court held that the City failed to establish that the 20 percent requirement was justified. CSPI also submitted an amicus brief to the Ninth Circuit in support of San Francisco’s earlier ordinance. 

The amicus brief shared the health groups’ expertise to explain to the court why the warning, which was challenged by the American Beverage Association and others on First Amendment grounds, is a factual and uncontroversial statement reflecting the consensus of the public health and medical communities.

In addition to CSPI, the amicus brief was joined by the American Heart Association, the American Medical Association, the California Medical Association, ChangeLab Solutions, and the Public Health Law Center. These public health groups were represented by Public Good Law Center and CSPI’s Litigation Department.

Key Legal Documents

  1. Ninth Circuit Amicus Brief (02/20/2018) 

  2. Ninth Circuit (En Banc) Decision (01/31/2019)  

  3. San Francisco’s Summary Judgment Brief (01/22/2021)  

  4. Plaintiffs’ Summary Judgment Brief (01/22/2021) 

  5. District Court Amicus Brief (02/26/2021)

Bacardi/Grains of Paradise Food Safety

Image: a bottle of Bombay Sapphire gin
In May 2020, CSPI and other public-interest groups submitted an amicus brief in Marrache v. Bacardi U.S.A. Inc., a case on appeal with important food safety implications. In the brief, the groups argued that states should be allowed to adopt more protective food safety standards than the federal government.

Marrache is a class action lawsuit alleging that Bacardi sold its Bombay Sapphire Gin illegally in Florida because the gin contains “grains of paradise,” an ingredient prohibited to be added to liquor under Florida law. The district court dismissed the lawsuit because FDA has determined that “grains of paradise” may be safely added to foods and beverages. That decision was appealed to the Court of Appeals for the Eleventh Circuit. 

Although CSPI and the other public interest groups took no position on the safety of grains of paradise, we urged the Eleventh Circuit to reject the district court’s reasoning because it would harm consumers by prohibiting states in other contexts from passing stricter food safety requirements than the federal government. This is particularly important because the federal government’s safety review of food additives, like grains of paradise, is often extremely limited, and in some cases, non-existent. Indeed, FDA permits companies to self-certify substances as safe without any notice to the agency or the public. 

The case is fully briefed, and the Eleventh Circuit heard oral argument on February 10, 2020. 

In addition to CSPI, the other public interest groups joining in the brief were Center for Food Safety, Clean and Healthy New York, Environmental Defense Fund, and Environmental Health Strategy Center. The public interest groups were represented by Earthjustice.

Key Legal Documents

  1. Plaintiff’s Opening Appellate Brief (04/27/2020)
  2. Amicus Brief (05/04/2020)
  3. Defendants’ Answering Appellate Brief (06/12/2020)
  4. Plaintiff’s Reply Appellate Brief (07/02/2020)

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 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 appeal is fully briefed, and the Ninth Circuit heard oral argument in January 2021.

In addition to CSPI’s Litigation Department, the plaintiff is represented by Bonnett Fairbourn Friedman & Balint, PC and Public Justice PC.

Key Legal Documents

  1. Complaint (10/31/2016)
  2. District Court Decision Granting Defendants’ Motion for Summary Judgment (6/25/19)
  3. Plaintiff’s Opening Appellate Brief (12/03/2019)
  4. Defendants’ Answering Appellate Brief (06/16/2020)
  5. Plaintiff’s Reply Appellate Brief (09/21/2020)

School Foods/USDA

A grade-school child looks up from her school lunch tray

In April 2019, CSPI and another non-profit organization brought a lawsuit to stop the weakening of nutrition standards for school meals by USDA.  

The lawsuit contended that the Trump administration’s USDA violated the Administrative Procedure Act (APA) and the National School Lunch Act by issuing a final rule that substantially weakened nutrition standards concerning the amount of whole grains and sodium served in school meals. The weakened standards put approximately 30 million children, including approximately 22 million low-income children, at greater risk of health issues associated with diets high in sodium and low in whole grains. 

The Plaintiffs asked the court to set aside the rule and to require the agency to follow Congress’ requirement to set school nutrition standards based on nutrition science as reflected in the Dietary Guidelines for Americans.  

In April 2020, the district court struck down the final rule on the ground that USDA failed to provide public notice of its plan to gut the nutrition standards in violation of the APA. Specifically, USDA’s 2018 final rule went significantly farther in weakening school food nutrition standards than its prior 2017 proposal. As a result, the court held that USDA did not provide stakeholders like CSPI a sufficient opportunity to participate in the rulemaking process. The Trump administration failed to release a rule re-proposing nutritional rollbacks for the school meals program.   

CSPI and Healthy School Food Maryland brought the suit against USDA and were represented by Democracy Forward and Vinson & Elkins LLP. 

Key Legal Documents: 

  1. Complaint (04/03/2019) 

  2. District Court Decision (04/13/2020)

Press Releases and Articles:

  1. Press Release Announcing the Filing (04/03/2019)

  2. Press Release on District Court Decision (04/13/2020)

  3. CSPI Statement on Reversing Rollback of School Nutrition Standards (01/20/2021) 

Cancer Causing Flavor Additives/FDA

Colored fluids in laboratory flasks
In May 2018, CSPI along with a coalition of health, consumer, and environmental advocacy organizations filed a lawsuit seeking to force FDA to decide whether to prohibit seven cancer-causing chemicals (i.e., benzophenone; ethyl acrylate; eugenyl methyl ether; myrcene; pulegone; pyridine; and styrene) from being able to be used in food as flavors. 

The Federal Food, Drug, and Cosmetics Act prohibits the use of any food additive found to induce cancer in humans or animals. Since FDA first approved the seven chemicals at issue, multiple scientific authorities had linked these flavors to cancer. Accordingly, CSPI and its coalition partners submitted a food additive petition at FDA in 2015 to revoke its approval of the flavors, arguing that the flavors cannot be lawfully used in food.

After years of inactivity on the petition, we asked the court to require FDA to act on our 2015 request. Specifically, we argued that FDA’s delay violated the congressional mandate that FDA respond to any petition concerning food additive safety within 180 days. Just three months after we filed the lawsuit (in October 2018), FDA revoked its approval of six of the seven flavor additives. (The industry had agreed to abandon all food uses of the seventh, styrene.) 

The lawsuit was filed in the Court of Appeals for the Ninth Circuit because the relevant law required litigation be filed in a federal court of appeals and the action was started by filing a Petition for Writ of Mandamus. 

In addition to CSPI, the other Petitioners were Breast Cancer Prevention Partners, Center for Environmental Health, Center for Food Safety, Environmental Defense Fund, Environmental Working Group, Natural Resources Defense Council, and WE ACT for Environmental Justice. The Petitioners were represented by Earthjustice.

Key Legal Documents

  1. Petition for Writ of Mandamus (05/02/2018)
  2. FDA Revocation Announcement (10/05/2018)


In March 2018, CSPI and other public health groups submitted an amicus brief supporting the FTC and the State of New York in their enforcement action against the dietary supplement Prevagen for making misleading memory enhancement claims.

In an extensive nationwide advertising campaign, the makers of Prevagen claim that the supplement is “clinically shown to improve memory.” But, the FTC and New York allege that the company’s own study found that Prevagen was no more effective than a placebo at improving memory. 

According to the FTC and New York, Prevagen’s claim was based only on the researchers going back and slicing and dicing data from the study (known as a post hoc analysis) and finding, in an otherwise negative study, a few positive results among a subgroup of the study’s population. The FTC and New York contend that it is false and/or misleading for Prevagen to utilize this unreliable methodology as the basis for its memory improvement claims.

The district court dismissed the lawsuit. The court held that the FTC and New York had failed to plausibly allege the memory claims were misleading because they had not shown that the claims were wrong, just that the post hoc analysis increased the risk that they might be wrong. That decision, if left to stand, could severely limit the FTC’s and state’s ability to police deceptive claims about products in the marketplace. The FTC appealed the decision to the Second Circuit.

We submitted an amicus brief to the Second Circuit to offer a consumer and public-health perspective on the regulatory and advertising issues presented in the case. The amicus brief explained consumers’ vulnerability to claims made for products, such as dietary supplements, that they cannot independently verify, and addressed the significant problem of relying on results from a post hoc subgroup analysis of a clinical trial. (The amicus brief was subsequently stricken by the court to avoid the need for recusal of a member of the Second Circuit Panel hearing the case due to a conflict between the amici and that Panel member.)

In February 2019, the Second Circuit ruled in favor of the FTC and remanded the case back to the district court for continuation of the litigation. The appellate court held that the “FTC has stated a plausible claim that [the defendants’] representations about Prevagen are contradicted by the results of [their] clinical trial and are thus materially deceptive.” 

In addition to CSPI, the other groups joining in the amicus brief were Public Citizen and Yale University’s Collaboration for Research Integrity and Transparency. The amici were represented by Public Citizen.

The plaintiffs are represented by Earthjustice and the Center for Food Safety.

Key Legal Documents

  1. District Court Decision (09/28/2017)
  2.  FTC’s Opening Appellate Brief (02/28/2018)
  3. Amicus Brief (03/06/2018)
  4. Defendants’ Answering Appellate Brief (05/30/2018)
  5. FTC’s Reply Appellate Brief (06/13/2018)
  6. Second Circuit Decision (02/21/2019)

Press Releases

  1. Press Release (05/22/2017)

Menu Labeling Delay

An infographic titled

In June 2017, CSPI and National Consumers League (NCL) brought a lawsuit challenging the FDA’s delay in implementing the menu labeling requirements.

In 2010, as part of the Affordable Care Act, Congress required certain chain restaurants to post calorie counts on menus and disclose other nutrition information for prepared food and beverages. These menu labeling requirements allow consumers to make informed and healthy choices and encourage restaurants to provide healthful menu items and smaller portion sizes.

In 2014, FDA issued a rule implementing the menu labeling requirements but, one day before industry was due to comply in May 2017, the Trump administration’s FDA delayed the compliance deadline for an additional year. Our lawsuit asserted that the last-minute delay of the menu labeling requirements—published without prior notice or an opportunity for comment—violated the Administrative Procedure Act.

Shortly after filing the lawsuit, then-FDA commissioner Scott Gottlieb issued a statement providing assurance that there would be no further delay and no changes would be made to the menu labeling requirements. Based on that statement, and subject to certain conditions (including that the requirements would go into effect on May 7, 2018), in September 2017, CSPI, NCL, and the FDA agreed to stay the lawsuit. The menu labeling requirements went into effect in May 2018 as promised.

CSPI and NCL were represented by Earthjustice. 

Key Legal Documents

  1. Complaint (06/07/2017)
  2. Joint Motion for Stay (09/15/2017)

Press Releases

  1. Press Release Announcing the Filing (06/07/2017)
  2. Press Release Announcing Court Approved Stay (09/27/2017)
  3. Press Release on Implementation of Menu Labeling (05/02/2018)

Secret GRAS Rule

Graphic of an apple being injected by several syringes.
In May 2017, CSPI and other public-interest groups filed a lawsuit challenging an FDA rule that permits companies to self-certify chemical additives used in food as safe without any notice to the agency or the public. The lawsuit alleged that the rule is unlawful and undermines the integrity of our food safety system.

Federal law requires the FDA to ensure that substances used in food are safe and mandates a rigorous pre-market safety review process for food additives. But, there is an exemption to that review process for substances designated as “generally recognized as safe” (GRAS).

The GRAS exemption was initially created to cover ingredients that are widely known to be safe, such as vegetable oil. And, prior to 1997, the FDA policed the exemption by requiring manufacturers to file a petition asking FDA to affirm the GRAS status of a particular use of a chemical substance. 

However, FDA has allowed the GRAS loophole to swallow the law. In 1997, the FDA proposed, and in 2016 it finalized, the challenged rule that allows food and chemical manufacturers to decide for themselves, without notice to FDA or the public, that food chemicals are safe—even if the chemicals are new, not widely studied, and not widely accepted as safe. 

The lawsuit alleges that this rule, among other things, violates the Administrative Procedure Act because it delegates the FDA’s responsibility to monitor the safety of chemical additives to self-interested food and chemical manufacturers.

In 2018, CSPI and two other plaintiffs—Breast Cancer Prevention Partners and Environmental Working Group—were dismissed from the lawsuit on standing grounds. That is, the court determined that we did not allege a sufficient legal injury to bring the lawsuit. Two non-profit groups—Center for Food Safety and Environmental Defense Fund—remain in the case, however. 

In 2019, the remaining plaintiffs and the FDA filed cross motions for summary judgment. Although those motions are fully briefed, they remain pending.

The plaintiffs are represented by Earthjustice and the Center for Food Safety.

Key Legal Documents

  1. Complaint (05/22/2017)
  2. District Court Decision (09/12/2018)
  3. Plaintiffs’ Summary Judgment Opening Brief (03/26/2019)
  4. FDA’s Summary Judgment Opening and Opposition Brief (06/17/2019)
  5. Plaintiffs’ Summary Judgment Opposition and Reply Brief (08/23/2019)
  6. FDA’s Summary Judgment Reply Brief (09/19/2019)

Press Releases

  1. Press Release (05/22/2017)

NYC Sodium Warning

The icon warning of high sodium levels on a menu board

In September 2016, CSPI and other public interest groups submitted an amicus brief in support of New York City in litigation brought against its proposal to require warning icons on chain restaurant menus next to items that have more than a days’ worth of salt.

The amicus brief furthered CSPI’s long-standing sodium reduction efforts. Excess sodium in the diet, much of which comes from restaurant food, promotes hypertension, stroke, and heart disease. The sodium warning gives consumers the freedom to choose healthier options and inspires restaurant chains to offer a wider variety of items lower in sodium. 

The warning was challenged by National Restaurant Association (NRA), which argued, among other things, that the proposal violated the First Amendment and was preempted by federal law because it imposed labeling requirements in addition to those mandated under the Federal Food, Drug, and Cosmetic Act (FDCA).

A New York trial court upheld the ordinance in February 2016, and the NRA appealed that decision to the New York Appellate Division. We submitted an amicus brief to the New York appeals court to explain the public health benefits of the warning, why it did not violate the First Amendment, and why it was not preempted by the FDCA.

In February 2017, the New York appeals court affirmed the trial court’s ruling in favor of New York City. The court determined that the warning did not violate the First Amendment because it was “factual, accurate and uncontroversial” and served the City’s interest in informing the public about the health risks associated with high sodium consumption. The court also held that the warning was not preempted because it fell within the FDCA’s health warning exception to preemption. The NRA did not appeal that decision, and the sodium warning remains in effect today. 

In addition to CSPI, the other groups joining in the brief were American Heart Association, American Medical Association, ChangeLab Solutions, Coalition for Asian American Children and Families, Medical Society of the State of New York, National Association of Chronic Disease Directors, National Association of County and City Health Officials, National Association of Local Boards of Health, New York Academy of Medicine, New York State Public Health Association, New York State American Academy of Pediatrics, Public Health Association of New York City, Public Health Law Center, and the Food Trust. The amici were represented by Richman Law Group, Public Good Law Center, ChangeLab Solutions, and Public Health Law Center.

Key Legal Documents

  1. Trial Court Decision (02/26/2016)
  2. Amicus Brief (09/19/2016)
  3. New York Appellate Division Decision (02/10/2017)

Cheez-It Whole Grain Crackers

In May 2016, CSPI’s Litigation Department and its co-counsel sued Kellogg Company on behalf of several classes of consumers, claiming that Kellogg misleadingly labels its 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.

The plaintiff classes were represented by CSPI’s Litigation Department and co-counsel Reese LLP and Mehri & Skalet, PLLC.

Key Legal Documents:

  1. Complaint (5/19/2016)
  2. District Court Decision (5/31/2017)
  3. Brief to the Second Circuit (10/06/2017)
  4. Second Circuit Decision (12/11/2018)

Press Releases and Articles: 

  1. 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.  

Key Legal Documents
  1. Complaint (02/01/2016)
  2. Report and Recommendation Re: Copy Cat Litigation (05/21/2018)
  3. Copy Cat Litigation Dismissal (06/04/2018)
  4. Settlement Agreement (5/07/2019)
  5. Court’s Approval of the Settlement (9/26/2019)

Press Releases

  1. Press Release (02/01/2016)
  2. Press Release on Approval of Settlement (9/27/2019)

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 sugary 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 sugary 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 sugary 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.

Key Legal Documents:

  1. Complaint (7/13/17)
  2. Coca-Cola Special Motion to Dismiss and for Attorneys’ Fees (SLAPP Motions) Against Plaintiffs (11/13/2017)
  3. American Beverage Association Special Motion to Dismiss and for Attorneys’ Fees (SLAPP Motion) Against Plaintiffs (11/13/2017)
  4. Coca-Cola Motion to Dismiss (11/13/2017)
  5. American Beverage Association Motion to Dismiss (11/13/2017)
  6. Plaintiffs’ Opposition to American Beverage Association’s Motion to Dismiss (1/30/2018)
  7. Plaintiffs’ Opposition to American Beverage Association Special Motion to Dismiss and for Attorneys’ Fees (SLAPP Motion) Against Plaintiffs (1/30/2018)
  8. Plaintiffs’ Opposition to Coca-Cola Motion to Dismiss (1/30/2018)
  9. Plaintiffs’ Opposition to Coca-Cola Special Motion to Dismiss and for Attorneys’ Fees (SLAPP Motion) Against Plaintiffs (1/30/2018)
  10. Order on ABA’s Motion to Dismiss and SLAPP Motion (1/22/2019)
  11. Order on Coke’s Motion to Dismiss and SLAPP Motion (10/01/2019)

Press Releases and Articles: 

  1. CSPI Video Press Release (7/13/17)
  2. CSPI Press Release (7/13/17)
  3. 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)
  4. CBS News: Coca-Cola Gets Served a Lawsuit by 2 Pastors (7/14/2017)
  5. 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.

Key Legal Documents
  1. Complaint (11/09/2015)
  2. Decision Denying General Mills’s Motion to Dismiss the Complaint (08/10/2016)
  3. Order Granting in Part and Denying in Part Motion to Dismiss (02/06/2017)
  4. Settlement Agreement (07/27/2018)

Press Releases and Articles

  1. Press Release (11/09/2015)
  2. Good Morning America segment (11/10/2015)
  3. The Atlantic Article (11/27/2015)
  4. Press Release (07/27/2018)
  5. Star Tribune Article (07/27/18)

Quorn Products

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.

Key Legal Documents:

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.

A few highlights from past litigation

Infant Foods

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.

Key Legal Documents
  1. Plum Organics / Campbell’s Demand Letter (05/11/2015)
  2. Plum Organics Settlement Agreement (10/21/2015)


  1. 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.

Key Legal Documents
  1. Complaint (10/06/09)
  2. Settlement Agreement (09/29/2015)

Press Releases

  1. 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.

Key Legal Documents
  1. Complaint (05/21/2007)
  2. Settlement Agreement


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.

Key Legal Documents
  1.  Settlement Agreement (06/14/2007)

Press Releases

  1. 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.

See also CSPI Petition to the FDA to Ban Trans Fats.