BATTLE CREEK, MICH. — The Kellogg Co. has agreed to create a fund of $4 million and make certain changes to the marketing and labeling of its Frosted Mini-Wheats cereal as part of a proposed settlement in a class action lawsuit dating back five years.

Consumers alleged in the lawsuit that Kellogg’s Mini-Wheats cereal was advertised falsely to improve children’s attentiveness, memory and other cognitive functions to a degree not supported by competent clinical evidence. Kellogg stands by its advertising and denies it did anything wrong. The settlement was the result of a compromise.

If approved by the U.S. District Court for the Southern District of California, the settlement will result in cash refunds for up to three boxes of cereal purchased during the time of the alleged false advertising (Jan. 28, 2008, to Oct. 1, 2009).

To be eligible for a refund, purchasers must submit a valid claim. Claims may be submitted on-line at

“This settlement represents an excellent recovery for consumers,” said Timothy Blood of Blood Hurst & O'Reardon, LLP, one of the lawyers representing consumers.

In addition to the $4 million settlement, Kellogg has agreed to refrain from using in its advertising and on its labeling for Frosted Mini-Wheats any assertion to the effect that “eating a bowl of Kellogg’s Frosted Mini-Wheats cereal for breakfast is clinically shown to improve attentiveness by nearly 20%” for a period of three years.

Kellogg would be able to make claims about the impact on attentiveness from eating the cereal, but will limit and qualify such claims wherever made to “Clinical studies have shown that kids who eat a filling breakfast like Frosted Mini-Wheats have an 11% better attentiveness in school than kids who skip breakfast,” or words to the same effect.

In the event Kellogg makes claims about the impact on memory or other cognitive function from eating the cereal, Kellogg similarly will limit and qualify any such claims.

“Kellogg Co. has a long history of responsible advertising,” said Kris Charles, a spokesperson for Kellogg. “This class action settlement pertains to an advertising campaign that ran approximately four years ago. We long ago adjusted our communication to incorporate F.T.C.’s guidance.”

Kellogg Co. originally agreed to settle the charges in April 2009, and on April 15, 2011, the U.S. District Court for the Southern District of California approved a settlement that would have had Kellogg create a $2.75 million cash fund, distribute $5.5 million of food products to charities, pay $2 million in attorney’s fees and costs, and refrain from using the challenged advertising language in advertising for three years.

But on Sept. 12, 2012, the Ninth Circuit reversed the final settlement approval order, vacated the judgment and award of attorney’s fees, and remanded for further proceedings, determining that the certain awards under the terms of the original settlement failed to target the plaintiff class.

A final ruling on the proposed settlement is set for July 30, 2013.