Court says Cheez-It ‘whole grain’ labeling misleading
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A reasonable consumer would assume a box of Cheez-It crackers with “whole grain” in big letters on the front of its box in fact contained predominantly whole grain flour, not enriched white flour, says a federal appeals court, in overturning a lower court ruling and reinstating a putative class action against the Kellogg Co.
Kellogg’s Cheez-It crackers had two different whole grain versions, purchased by plaintiffs, according to Monday’s ruling by the 2nd U.S. Circuit Court of Appeals in New York in Kristen Mantikas et al. v. Kellogg Co.
One said “whole grain” on the package with “made with 5G of whole grain per serving” in small print on the bottom. The other version said “made with whole grain” and “made with 8G of whole grain per serving” in small print on the bottom.
However, under “Nutrition Facts” on the side of the box, the first ingredient listed was “enriched white flour” with “whole wheat flour” listed on the ingredients either second or third, said the ruling, noting that by federal regulation, ingredients are listed in order of their predominance, with the primary ingredient listed first.
Plaintiffs filed suit in U.S. District Court in Central Islip, New York, charging Battle Creek, Michigan-based Kellogg with false advertising and deceptive business practices. The district court dismissed the case, stating the labels would not have misled a reasonable consumer.
A unanimous three-judge appeals court panel disagreed. The whole grain labels on the boxes are misleading “because they falsely imply that the grain content is entirely or at least predominately whole grain,” said the ruling.
“We conclude that a reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the box to correct misleading information set forth in large bold type on the front of the box,” the ruling said, in vacating the lower court ruling and remanding the case for further proceedings.
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