Jacob Bielanski Mar. 21, 2016, 12:05pm


AUSTIN, Texas (Legal Newsline) - A lawsuit alleging that Greek yogurt at Whole Foods contained more sugar than listed on the label was dismissed earlier this month after a judge found the testing methods cited by plaintiffs attorneys were not stringent enough.

Plaintiffs submitted a second amendment complaint in a multidistrict litigation proceeding over the company’s “365 Everyday Value Plain Greek Yogurt.” According to the lawsuit, the product label says the yogurt contains only two grams of sugar, while independent testing by Consumer Reports found it contained nearly six times as much.

In July of 2014, Consumer Reports published an article on the yogurt sold by Whole Foods, noting that the “numbers didn’t add up.” Subsequent testing of six random samples found that the yogurt contained an average of 11.4 grams of sugar - roughly the same as most plain greek-style yogurts, due to the presence of lactose.

In a response to Consumer Reports, representatives of Whole Foods said they “take this issue seriously” and were investigating the discrepancy with the third-party lab that performed the companies testing.

In his ruling, U.S. District Judge Sam Sparks, of the Western District of Texas, determined that the testing criteria used by Consumer Reports used fewer samples than similar testing guidelines established by the FDA.

Consumer Reports used six samples in its test, while the FDA would use 12 in a similar testing.

Brenden Coller, an attorney with Cozen O'Connor, wrote in a blog post that such a discrepancy in standards allows the case to be dismissed under the doctrine of preemption. In essence, the plaintiffs can’t hold defendants to a standard higher than those set by the government.

Coller noted to Legal Newsline that independent testing is beginning to drive a number of similar labelling lawsuits. He points to a recent case against The Honest Company, which was co-founded by actress Jessica Alba.

Plaintiffs are alleging the company lied about the chemicals in its cleaning products, basing their claims on tests performed by the Wall Street Journal.

“That's really the problem with a lot of these food mislabeling cases is that a lot of people are misinformed by what they see in the news,” Coller said.

Though the ruling dismissed all individual actions, Sparks allowed plaintiffs the opportunities to modify the complaint. This, Coller said, means a suit still could be brought against Whole Foods under the same case file, if the plaintiffs find new justification.

Coller noted that this and other cases highlights the importance of companies to be “proactive rather than reactive.” In addition to keeping up the standards for industry regulation, he said companies need to be keep aware of what media outlets or interest groups are saying about their products.

“You never know how even an innocent statement in a report somewhere may be taken by he plaintiffs bar somewhere and could make its way into a complaint,” he said.

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