Mondelez under fire as plaintiff’s bar turns up the heat on sugar
In a lawsuit* - filed in the southern district of California by the same team of attorneys that has sued Kellogg, Post, and General Mills over sugar levels in their breakfast cereals – plaintiffs Patrick McMorrow and Marco Ohlin accuse Mondelez of targeting belVita products towards consumers interested in health and nutrition when they are in fact high in sugar – excessive amounts of which, they claim, are linked to everything from heart disease and type 2 diabetes, to cancers, cognitive decline and liver disease.
There is no specific regulation that disqualifies firms from implying or stating a product that products are healthy or nutritious based on sugar content (conditions of use for the nutrient content claim ‘healthy’ focus on fat and sodium and don’t mention sugar, while 'nutritious' is not defined in law).
However, the plaintiffs argue that federal regulations enshrined in California state law require that labels are not “false or misleading,” and allege violations of California’s false advertising and unfair competition laws, and the Consumers Legal Remedies Act.
Consumers, they argue, are encouraged to eat belVita products as “part of a balanced breakfast” for “nutritious steady energy all morning,” claims which they are argue deceptive “because they are incompatible with the dangers of the excessive sugar consumption to which the products contribute.”
While Mondelez does not describe the biscuits as ‘healthy’ ‘low sugar’ or good for you on the label, the products are “designed to appeal to health-conscious consumers,” says the complaint.
belVita products have less sugar than other breakfast foods (juice, cereal, yogurt)
So how much sugar is in belVita products, and is it accurate to describe them – as the plaintiffs do – as ‘high-sugar’?
The products at issue contain 8-14g added sugar per serving, which is between 32% and 56% of the daily added sugar maximum level recommended by the American Heart Association for women, and between 21% and 37% of the maximum level recommended for men (the AHA recommends that added sugars account for a maximum of 5% of energy intake, although this figure has not been adopted in the US dietary guidelines).
To put this in perspective, however, many other breakfast products contain more sugar. Yogurts, for example, typically contain 12-18g sugar per serving, while a small [8oz] glass of Tropicana Original 100% orange juice has 22g sugar.
In the cereal aisle, meanwhile, Raisin Bran Crunch contains 19g of sugar per 53g serving, and Honey Nut Cheerios - the best-selling cereal in the US - contain 9g of sugar per 28g serving.
The FDA, meanwhile, does not define ‘high’ or ‘low’ sugar, and only sets conditions of use for ‘reduced/less/lower sugar’ claims, which belVita is not making.
Attorney: 'We can expect to see more of sugar-related cases'
So what do attorneys make of the case?
Keri Borders, a partner at law firm Mayer Brown told FoodNavigator-USA that sugar is a hot area for litigation right now, even though the sugar levels in the products cited in the lawsuit are lower than those in many other products that people might consume for breakfast.
In this case, while there are no hard claims on pack, the belVita packaging does describe the products as 'nutritious,' an ill-defined term that plaintiff's attorneys see as a code-word for healthy and fertile ground for false advertising lawsuits, she added.
“The claims in the earlier complaints [against the cereal companies] were narrowed but they survived the motion to dismiss stage so it's not surprising that he [attorney Jack Fitzgerald, who is behind these suits] has taken this same theory and applied it to another type of product, and I expect he'll probably take it into other categories as well.
"It's hard to defend yourself when plaintiff's attorneys manipulate what you say to cobble together a theory of liability. In order to get past the pleading stage you only really have to establish that it's somewhat plausible that your claims could possibly be misleading."
Plaintiffs face an uphill battle
Adam Fox, a partner at law firm Squire Patton Boggs, however, said the plaintiffs faced an uphill battle, adding: "Like many other lawsuits of this sort, this one does not strike me as a particularly strong on the merits and I would expect it to face serious challenges to certification as a class action."
He added: "Having reviewed the complaint, this strikes me as yet another general assault on caloric sweeteners—whatever the source—based on the notion that when they are over-consumed they may be associated with a variety of negative health consequences.
"Although the pleading is filled with numerous citations to (and excerpts from) a wide range of publications, little attention seems to have been given to anything other than whether those many quotations could be strung together to create a pseudo-scientific screed. Whether the complaint’s citations are rigorously performed epidemiologic studies, mere case reports or opinion pieces, or even accounts of experimental animal evidence, they are all treated by the plaintiffs as having equal weight and being relevant to claims of deception levied against the defendant.
"This is somewhat astonishing because the defendant is not claimed to be using its labels or advertising to encourage the over-consumption of anything. Indeed, the complaint never confronts the reality that over-consumption, or consumption more generally, is an individualized matter, and may be driven by a wide range of factors, including taste, price, size, texture, and numerous other considerations besides nutritional quality—and even the last of those may have varied perspectives."
The letter and the spirit of the law
Mondelez did not respond to requests for comment.
However, in motions to dismiss similar lawsuits filed by the same attorneys in 2016, defendants Kellogg, Post and General Mills said their labels complied with both the letter and the spirit of the law, and noted that there is no federal regulation that disqualifies firms from describing a product as ‘healthy,’ or ‘nutritious’ based on its sugar content.
*The case is: Patrick McMorrow and Marco Ohlin et al v Mondelez International, 3:17-cv-02327 filed on November 16, 2017 in the southern district of California, by the law offices of Jack Fitzgerald PC and Paul K Joseph PC.