Recent lawsuits filed against food companies for deceptive advertising have embraced the “spaghetti on the wall” approach:  just make enough accusations and eventually one of them will stick.  This approach fills courts with frivolous claims that waste society’s time and money.  To reverse this trend, judges must embrace the heightened pleading standards set forth by Twombly and Iqbal and unabashedly, and quickly, dismiss complaints that are facially implausible.

The Northern District of California seems to now be the hot pocket for food advertising lawsuits.  Consider two recent lawsuits in that district.  In the first, on May 11, Judge Samuel Conti examined a motion to dismiss in Lam v. General Mills, Inc., (Case No. 11-5056), in which plaintiff Annie Lam complained that General Mills had (deep breath):

  • Tricked consumers into thinking its fruit roll-up snacks are healthful
  • Improperly labeled its snack “gluten free”
  • Improperly labeled its snack “fruit flavored snacks,”
  • Improperly labeled its snack “naturally flavored”
  • Improperly said its snack was made “with real fruit.”

I guess Lam’s imagination reached its end at that point.

Some of these complaints just make no sense – how is “gluten free” untrue or misleading or unfair in any way when the product, in fact, contains no gluten?  Others are, notably, preempted by federal law; Judge Conti dismissed the complaints against “fruit flavored” and “naturally flavored” due to the very clear FDA law that allows for such statements (21 U.S.C. § 343(k):  MTD at 8).

As for the general complaint that General Mills deceives customers into thinking its snacks are healthful because it posts several truthful positive elements of its snack (“A good source of vitamin C, 80 calories, low fat,”) …  it’s a claim that boils down to “that what you DIDN’T say is untruthful,” as I have already noted in a previous blog post through an online-dating analogy:

If I say that I’m tall – one of the characteristics that often describes attractive men – it doesn’t mean that I said I’m attractive.  Therefore, it would be unfair if a viewer of my profile claimed that I wasn’t attractive and then sued me for false advertising.

The “with real fruit” was the spaghetti that stuck for Lam, and it will be assessed further by the court.

Unfortunately, not all of the Northern District’s judges have the batting average that Judge Conti posted in the above case.   One such judge is Judge Richard Seeborg, who recently assessed a motion to dismiss in Guttmann, et al. v. Quaker Oats.   In that case, Judge Seeborg surprisingly let several of the plaintiffs’ complaints go forward despite the fact that they seemed clearly preempted by federal labeling law.  Quaker Oats will likely win on all proceeding points, but by even having to deal with the complaints, the lawsuit will cost Quaker Oats significant sums – sums that could translate to fewer Quaker Oats jobs and higher oatmeal prices.

A few thoughts to take away from these two cases:

  1. If judges do not signal a willingness to quickly and consistently dismiss seemingly threadbare complaints, then these suits will multiply and food companies will be spooked into selling their products with bare-bones or even plain packaging – a loss for consumers.
  2. Our judicial system must respect preemption claims.  If a food company complies with FDA rules as they are commonly understood, the company should not be subjected to defending itself to hundreds of complaints made through state law that contradicts federal law.
  3. These plaintiffs don’t appear to be unfortunate consumers who had mistakenly fed their children Fruit Roll-Ups for years under the impression that doing so would make their children very fit and healthy.  Rather, the mold seems to be more along the lines of Victor Guttmann who, as noted in the defense’s motion to dismiss, has already brought similar lawsuits against other companies.

WLF will continue to follow these suits.  In the meantime, we encourage our judicial friends in the Northern District of California to take a cold hard look at these complaints before letting them go through.  The spaghetti strategy might get something on the wall, but it creates a lot of mess for the rest of the household.