WASHINGTON — The U.S. Court of Appeals for the Second Circuit has determined that the District Court for the Eastern District of New York erred when it granted the Kellogg Co.’s motion to dismiss a class action lawsuit involving alleged “false and misleading” labeling on its Cheez-It whole grain crackers. As a result, the lawsuit will now proceed, according to a Dec. 11 filing.
Plaintiffs Kristen Mantikas, Kristin Burns and Linda Castle alleged that Cheez-It crackers that were labeled “whole grain” or “made with whole grain” would cause a reasonable consumer to believe that the grain in whole grain Cheez-It was predominantly whole grain. In reality, the primary grain content in the crackers is enriched white flour.
“We conclude that the district court erred in dismissing plaintiffs’ complaint,” the U.S. Court of Appeals noted in its Dec. 11 filing. “Reviewed under the proper standards for a Rule 12(b)(6) motion, the complaint plausibly alleged that a reasonable consumer would be misled by defendant’s whole grain labels to believe that the grain in whole grain Cheez-Its was predominantly whole grain. Accordingly, we vacate the judgment of the district court and remand for further proceedings.”
The original lawsuit filed back in 2016 stated the labeling language used by Kellogg was similar to that of competitors Mondelez International, Inc. and Pepperidge Farm, Inc. Mondelez offers Nabisco Wheat Thins Whole Grain that are 100% whole grain, as are Nabisco Triscuit crackers. Similarly, Pepperidge Farm Goldfish Baked with Whole Grain are predominantly whole grain flour (whole wheat flour being the first ingredient).
“Plaintiffs would not have purchased or paid more for Cheez-It whole grain crackers had they known the product contains more refined grain than whole grain,” the lawsuit said.
The snack crackers' primary ingredient listed on the ingredients panel is enriched flour, followed by soybean and palm oil with TBQH, and then whole wheat flour.
In 2016, Kellogg said the lawsuit was “completely without merit.”
“Our Cheez-It whole grain labels are accurate and in full compliance with F.D.A. regulations,” the company said when the lawsuit originally was filed in 2016. “We stand behind our foods and our labels.”
Responding to the U.S. Court of Appeals decision on Dec. 11, Kellogg declined to offer an update.
“We don’t comment on ongoing litigation,” the company said.