Breakfast break: energy claims not misleading by US standards

Spector v. Mondelēz International, Inc., 178 F.Supp.3d
657 (N.D. Ill.
2016)
Mondelēz makes belVita Breakfast Biscuits and
Breakfast Bites. Spector allegedly bought packages of Breakfast Biscuits in
reliance on the package representations of “NUTRITIOUS STEADY ENERGY ALL
MORNING”:
 

The relevant graphic uses a clockwise arrow
representing a four-hour period of time between 8 a.m. and noon:

The Breakfast Bites icon is similar, but
contains the phrase “4 hours”:

The back of the Breakfast Bites box states that
a single serving is “[a] nutritious start to a busy morning,” which is “a
nutritious, convenient, on the go breakfast choice that contains slow-release
carbs from wholesome grains to help fuel your body for 4 hours”:

Spector alleged that this was misleading, in
that it portrays the products as “perfect for an ‘on-the-go’ lifestyle due to
their being ‘portable.’ ” However, th products actually provide four hours of
nutritious steady energy only if they are combined with a serving of low-fat
milk. The disclosures on the Australian website for belVita allegedly showed
that “Defendant fails to state in its United States advertising that the
purported studies on which Defendant claims to rely require that the Products
be consumed with at least a serving of low-fat milk in order to obtain the
benefits Defendant touts.”
The back of the Breakfast Biscuits box, which
repeats the claim of four hours of “nutritious steady energy all morning” while
suggesting that Breakfast Biscuits be “enjoy[ed]…as part of a balanced
breakfast with a serving of low-fat dairy and fruit,” allegedly conveyed that
milk was optional.
Pleading a violation of the Illinois Consumer
Fraud Act requires a plaintiff to satisfy Rule 9(b).  The fundamental defect here was that Spector
pled no facts, such as personal
experience or third-party studies, showing that the products don’t provide
“nutritious steady energy” as promised.  Spector’s allegation of falsity was merely
conclusory. 
Spector argued that the studies cited by Mondelēz
on its Australian website were sufficient to form the basis of a plausible
claim that the “nutritious steady energy” claim was actually false because the
Australian website supposedly said that a glass of milk was required.  Under
Illinois law, “[l]ack of substantiation is deceptive only when the claim at
issue implies there is substantiation for that claim, i.e., if
defendants had claimed something along the lines of ‘tests show that [the
product in question] is [ ] effective ….” Here, though, the products’
packaging didn’t imply there was substantiation for the “nutritious steady
energy” claim.  [I disagree—in the modern
world, a health or nutrition claim is a scientific claim, especially when
quantified for “four hours,” and necessarily implies some degree of scientific
substantiation.]
Further, while the Australian website did imply the existence of
substantiation for the “nutritious steady energy” claim, Spector didn’t allege
she ever saw the substantiation claim on that website and thus she couldn’t
have relied on it.  But she was using the
Australian substantiation as evidence that the US package was false, not as
something she relied on.  Mondelēz argued
that, because Spector herself made the studies part of the complaint, the court
could examine them, but the court found merit to Spector’s point that she was
citing the description of the studies, not the studies themselves.  So the court proceeded without evaluating the
study data.
The Australian website allegedly claimed that “belVita
Breakfast biscuits† provide carbohydrates that are continuously and gradually
absorbed and released throughout the morning,” with the † leading to the statement,
“belVita Breakfast plus a glass of low-fat milk,” below this chart:

Although these disclaimers were
repeated multiple times, the court found it clear that they didn’t say that “one must consume the Products with low-fat milk in
order to achieve four hours of energy.” “The actual statements do no more than
refer to the fact that milk was consumed with the Products in the cited
studies.” Plaintiff confused correlation with causation. This was not enough to
rise to the level of plausibility under Twiqbal,
especially since her claims sounded in fraud. 
“In the context of this case, the Court concludes that Plaintiff must do
more than allege ‘the neutral facts necessary to identify the transaction.’”  This was necessary to protect Mondelēz from
the stigma of fraud.  Further Illinois
courts are “always watchful that the Act not be used to transform nondeceptive
and nonfraudulent omissions into actionable affirmations.” An omission is
actionable only “where it is employed as a device to mislead.”
Also, Spector lacked a relevant injury under
ICFA.  Although she alleged a financial
injury—she wouldn’t have bought the products or paid as much for them had she
known the truth—that wasn’t enough under ICFA. 
Illinois cases established that a plaintiff who alleges deceptive
advertising about the effectiveness of a product has not suffered an injury if
she “believed the [product] [was] effective and never complained to anyone that
[it] did not work.” Spector never alleged that she didn’t get four hours of
steady energy.
The same defects doomed her claims for breach of
express warranty and unjust enrichment.

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