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Friday, February 21, 2020

Post Foods faces class action over allegations of deceptive cereal box advertising

By Tara Mapes | Oct 6, 2016

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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 requirements.

The lawsuit begins its argument with a scientific summary of adverse health effects excessive sugar consumption causes.

“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 companies.”

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.

“I think 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 wake up.

"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. 

“Class 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.”

This 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 San Diego.

Jack Fitzgerald, attorney for the plaintiffs, declined Legal Newsline’s request for comment.

Post did not respond to Legal Newsline’s requests for comment.

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U.S. District Court for the Northern District of California