False Advertising: General Mills Dodges a Bullet

Just because a box says “Blueberry” doesn’t mean it actually has any blueberries.

In the recent case of Dvora v. Gen. Mills Inc., a federal court in California dismissed putative class claims brought against General Mills Inc. alleging that the company falsely claimed that its Total Blueberry Pomegranate® cereal product contained real fruit.

The Plaintiffs alleged violations of California’s unfair competition statute.  Basically, the claimed that, because the cereal box label contained the words “Blueberry” and “Pomegranate” in a large and bold font, along with “100%” and “Nutrition,” General Mills was misleading the public by falsely suggesting that the cereal contained within did, in fact, contain blueberry and pomegranate, while in reality it contained a mix of various artificial flavors and food colorings.  To review the Complaint, click here.

The court ruled that the Plaintiffs’ claims were pre-empted by federal product-labeling laws and flavoring regulations, which allow a manufacturer to use a fruit’s name and image to describe a flavor even if the product contains no fruit.  The judge in the case said: “If you look at the ingredients table, blueberry and pomegranate aren’t there. So I don’t understand how a reasonable consumer is somehow tricked into thinking it contains blueberry and pomegranate.”

The court also said in its tentative ruling, “The cereal package includes a picture of the cereal containing ‘clusters.’ Although—with all respect to plaintiff—it is difficult to imagine anyone mistaking said clusters for actual blueberries or pomegranate seeds.”

The court’s logic is inescapable, but I’ve always found federal food labeling laws to be disturbingly lax and extremely convoluted in many respects.  This case does make one thing clear:  if a chemical produced in a laboratory bears a flavor that is somehow reminiscent of a fruit found in nature, a company may state that fact by naming that fruit on a box containing a product made using that chemical.  It’s up to the consumer to go through the trouble of actual reading the ingredients to find out what’s actually in the stuff.

What I wonder is who’s  responsible for ingesting these chemicals to determine what sort of fruit they taste like.   More importantly, why can’t they just add some blueberries and avoid the issue entirely?

 

 



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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