Cheerios Protein name might be more bluff than buff

Coe v. General
Mills, Inc., No. 15-cv-05112, 2016 WL 4208287 (N.D. Cal. Aug. 10, 2016)
Plaintiffs alleged the
name “Cheerios Protein” was misleading because it implied that the product is
essentially the same as Cheerios, only with added protein. Cheerios Protein
does have more protein than regular Cheerios (7 grams per serving versus 3
grams per serving), but plaintiffs alleged that the amount of additional
protein wasn’t material, particularly considering the larger serving size and
calories per serving of Cheerios Protein. Plaintiffs calculated that 200 [grams?]
of Cheerios contained 6 grams of protein, whereas 200 grams of Cheerios Protein
contained 6.4 or 6.7 grams of protein, depending on the flavor (Oats &
Honey or Cinnamon Almond).  Moreover, “Cheerios
Protein” was allegedly misleading because it said nothing about added sugar. A
single serving of Cheerios contains only 1 gram of sugar, but a single serving
of Cheerios Protein contains 16 or 17 grams of sugar.  Plaintiffs also challenged certain label
statements: that the product provides “a great start to your day,” enables you
to “start your school day right,” and allows you to “kick-start your day.” And
they challenged a “Fuel Up” ad, in which a NASCAR driver picks up a child
and races him to school, where “he is fed Cheerios Protein pit-stop style.” They
brought California and New York claims.
GM argued FDCA
preemption, and plaintiffs argued that their claims were “identical to the
federal labeling requirements.”  They
alleged violations of some specific regulations about food naming, which the
court found were inapplicable because “Cheerios” is not the common or usual
name of the food or of an ingredient. 
However, the FDCA also calls a food “misbranded” if its “labeling is
false or misleading in any particular.” 
“By its terms, the express preemption provision does not bar the
enforcement of state laws imposing requirements of that type – that is, a
state-law mirror of the requirement in § 343(a)(1) addressing false or
misleading labels.”  The only limit is
that a claim under this provision would be barred if the challenged aspects of
the label complied with a specific federal regulation. A statement cannot be
“false or misleading” “where challenged conduct is expressly required or
permitted by FDA regulations.”
GM argued that “Cheerios
Protein” was a permissible implied nutrient content claim under FDA regulations
that allow certain statements about the amount or percentage of a nutrient.  But “Cheerios Protein” didn’t imply that the
product contains any certain amount or percentage, or make a “good source”
claim (also regulated). Plaintiffs’ claims fell under the catch-all provision and
weren’t preempted.
The court also
dismissed a few statements as puffery, but found that the factual status of
most were not suitable for resolution on a motion to dismiss.  Though the box disclosed the sugar content
and said “sweetened,” those were less prominent than other components of the
label, including the “Cheerios Protein” name and the number of grams of protein
in each serving.  “While the Court is
skeptical that a reasonable consumer would be misled by the labeling of
Cheerios Protein, it cannot say, construing the allegations in a light most
favorable to Plaintiffs, that it would be impossible for Plaintiffs ‘to prove
that a reasonable consumer was likely to be deceived.’”  The other label statements were also not
subject to dismissal because they might contribute to the deceptiveness of the
package as a whole.
However, the “fuel
up” claims in the TV ad were  “too
general to constitute an actionable statement. The advertisement’s claims that
eating Cheerios Protein is akin to ‘fueling up’ a race car driver are ‘so
exaggerated as to preclude reliance by consumers,’ and ‘a reasonable consumer
would not interpret the statement as a reliably factual claim.’”

The court also
agreed with “the majority view…that a plaintiff must allege the intent to
purchase a product in the future in order to have standing to seek prospective
injunctive relief.” The injunctive relief request was dismissed with leave to
amend.

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