SAN FRANCISCO (Legal Newsline) - Two California consumers are suing Post Foods, alleging false advertising and unfair competition.
Debbie Krommenhock of Dublin,
California, and Stephen Hadley of Monterey, California, filed a class action
complaint, on behalf of themselves and all others similarly situated,
against Post Foods LLC, requesting damages of more than $5 million. The complaint, filed Aug. 29 in the U.S.
District Court for the Northern District of California, alleges violation of California's
False Advertising Law through deceptive advertising.
According to the complaint,
the plaintiffs and class members were lured to purchase Post's products, centered
mainly on packaging labels advertising its cereals as healthy food choices to
obscure the dangers of added sugars.
The complaint is a gigantic 193 pages and includes pictures of cereal boxes to demonstrate advertising and the
products’ labels. It contends the sugar used in Post’s cereals caused the
plaintiffs to suffer from unnecessary increased risks of metabolic syndrome,
cardiovascular disease, diabetes, stroke and other chronic morbidity. It alleges Post targets children and violates U.S. Food and Drug Administration (FDA) labeling
The lawsuit begins its
argument with a scientific summary of adverse health effects excessive sugar
“The scientific evidence is
compelling: Excessive consumption of added sugar is toxic to the human body," the lawsuit states. "Experimentally sound, peer-reviewed studies and meta-analyses convincingly show
that consuming excessive added sugar -- any amount above approximately 5 percent of daily
caloric intake -- greatly increases the risk of heart disease, diabetes, liver disease
and a wide variety of other chronic morbidity.”
Naming more than 50 cereals in
the lawsuit, the plaintiffs allege Post falsely represents its cereals are “healthy,”
“nutritious” or “wholesome,” and that its cereals will “promote health,
prevention of disease or weight loss.” It also argues Post conceals dangers of
added sugar by advertising its cereals with labels such as “No High Fructose
Corn Syrup” or “Natural Wildflower Honey.”
The complaint argues the
nation has seen a rise in human sugar consumption, which produces cravings,
withdrawals and chemical changes in the brain likened to those addicted to drugs
such as cocaine and alcohol.
The plaintiffs allege Post
knew, or reasonably should have known, that the challenged health and wellness claims
were untrue or misleading.
Michael Reese, attorney
and food litigation lecturer, told Legal
Newsline, “The Ninth Circuit ruled in William v. Gerber that consumers should be able to rely upon what’s
on the front of a food package and not drill down on the small print on the
back to ensure the claims are accurate. In other words, if you’re misleading consumers
by the way you portray the front of the packaging, regardless of the labeling
on the back, that’s not enough and it can be considered misleading.”
Reese said the focus
of the lawsuits is not as much about requiring companies to educate consumers but in how they market a product to consumers.
“Marketing is a big part of it,
most consumer protection claims are based on affirmative misrepresentation claims," he said. "There are circumstances where you can hold a company responsible under strict
product liability. Especially with cereals, they are presented as a health food.”
Reese said it doesn’t
shock him that sugar is becoming a focal point. He said there are a number of
books published that examine food companies and how they are using sugar.
“There is something
called the 'bliss point' referenced in Michael Moss’ book ‘Sugar, Fat, Salt,’ which
is a term used by companies to describe an optimal level of sugar, fat and salt
that keep people wanting more of that product," he said. "It makes you want more, but you’re
never really satisfied. He compares those tactics used to those used by tobacco
Reese continued, “The FDA is taking a
firmer stance on this subject as well. There is a new nutrition fact panel coming
out that requires an additional line for added sugar. If you buy apple juice, for
instance, you expect sugar to be a part of the juice because apples are sweet, but companies add additional sugar. That added sugar is not currently disclosed
on the label."
The panel will break out how much sugar is actually added by the companies. Reese said he thinks it will be really beneficial to consumers.
these are noble cases; like any consumer cases they are often not the easiest, but that doesn’t mean they shouldn’t be brought," Reese said. "Sometimes the greatest social
change comes from the hardest things to do. What I hope is that the industry will
"I believe there are many good operators in the industry and want to
best serve their customers. We don’t need sugar. Hopefully they aren’t putting
more sugar in their products just to sell more of it. I think good companies
want complete transparency so consumers know exactly what they’re getting."
He said he believes
it takes a class action to effect change rather than making changes first because
every company is different, but there are competitive pressures they all face.
actions are good because they bring issues to the forefront,"
Reese told Legal
Newsline. A company might be
afraid to stick its neck out and change the way it does business because they
may get hurt, or a competitor may get a leg up on them, but with public
litigation in a public court, everyone comes under scrutiny, and I think that’s
a good thing for all of us.”
action is not the only lawsuit Post and other cereal manufacturers are facing
for allegations of misleading marketing. At least three other
lawsuits were filed against Post and other cereal firms alleging
they falsely advertised their products were 100 percent natural while
they actually contained a chemical used in weed killer called glyphosate.
Krommenhock and Hadley seek
trial by jury, certification as a class action suit, a corrective advertising
campaign, restitution, interest, costs, expenses, attorneys fees and all other
relief the court deems just.
They are represented by attorneys Jack Fitzgerald,
Trevor M. Flynn and Melanie Presinger of The Law Office of Jack Fitzgerald PC in
Fitzgerald, attorney for the plaintiffs, declined Legal Newsline’s request for comment.
did not respond to Legal Newsline’s requests