False Advertising Class Action Update

The onslaught of health claim-related false advertising lawsuit filings against food and beverage producers continues—particularly in California federal courts. Cases recently filed against Wm. Wrigley Jr. Co. and The Hershey Co. illustrate class action plaintiffs’ lawyers’ increasingly sophisticated attacks on food companies’ nutrient content claims. 

In the Wrigley case, the plaintiffs allege that Wrigley’s “sugar free” and “sugarless” claims made on certain gum and hard candy products are misleading because the products contain calorie levels that are too high according to federal labeling regulations. They also claim that the products do not contain a disclaimer that, for example, the product is “not for weight control,” a requirement plaintiffs assert is triggered by federal regulations as well. Plaintiffs also assert that Wrigley misstates the true serving size of the products and falsely conveys that the product has fewer calories per serving than it actually has.

Plaintiffs in the Hershey case — who are represented by the same set of lawyers as in the Wrigley and whose claims were filed in the same court on the same day — also challenge nutrient content claims made on Hershey’s dark chocolate and cocoa products labeling and its websites. The labeling of these products notes that, for example, “cocoa is a natural source of flavanol antioxidants.” Relying again on federal regulations, the plaintiffs claim that Hershey cannot make reference to antioxidants at all because there is no recommended daily intake amounts for flavonoids and because there is insufficient proof that flavonoids convey the health benefits asserted. 

Also, plaintiffs claim that because the products contain certain levels of sodium and saturated fat, Hershey cannot make the antioxidant claims without also making a saturated fat disclosure statement required by federal regulations.

What do these recent filings mean for food and beverage makers touting the health benefits of their products? Are these complaints “more of the same” or are they opening a new wave in the false advertising cases onslaught?

Unlike many of the more simple cases filed over the past few years, these complaints rely heavily on federal regulations governing nutrient claims. These cases make it clear that plaintiff lawyers are now meticulously scouring food labels for nutrient-based claims that might run afoul of highly detailed and technical federal labeling requirements. Once alleged violations of federal regulations are located, they provide a basis for alleging false advertising claims under plaintiff-friendly California laws.

With these and other recent filings, food and beverage company marketing departments must be ever-vigilant in ensuring that they have followed all applicable regulations and included all necessary disclaimers that might be triggered by health-related nutrient claims and other label statements. So long as food and beverage makers continue to tout their products’ health benefits, there will be no shortage of plaintiff lawyers willing to fly-speck labels for potential claims and these cases will continue to be filed.