“graham cracker” is dead metaphor, implying nothing about graham flour content

Kennedy v. Mondelēz Global LLC, 2020 WL 4006197, No. 19-CV-302-ENV-SJB
(E.D.N.Y. Jul. 10, 2020) 

(R&R by someone I remember from my debate days, Sanket
Bulsara) 

Plaintiffs alleged that the terms “grahams” and “graham
crackers,” along with other statements and images, in Nabisco and Honey Maid’s
graham cracker products, violated NY consumer protection law by falsely implying
that the products contained predominantly graham flour—as opposed to white
flour—and more honey than sugar. The magistrate recommends dismissal. 

The Nabisco Grahams box contains the words “Nabisco
Grahams,” “Original,” and “made with 8g of whole grain per 31g serving,” and
pictures of a tan, khaki-colored, darkened-color, or “noticeably dark-tan hue”
cracker and a swaying, unrefined stalk of wheat. On the side: “No High Fructose
Corn Syrup,” “More than a century of great graham know-how,” “A sensible snack
with a satisfying hint of sweetness,” and “NABISCO Grahams – a tradition of
wholesome nutrition.” 

The Honey Maid label includes a similar picture of a tan,
khaki-colored cracker, as well as pictures of a bee and a honey dipper, with
the words “Honey Maid,” “Made with Real Honey, “No High Fructose Corn Syrup,”
and “8g of Whole Grain per 31g serving.” 

The dictionary definition of “graham crackers” is “a
slightly sweet cracker made of whole wheat flour” or “a semisweet cracker,
usually rectangular in shape, made chiefly of whole-wheat flour.” Graham flour
is a whole grain wheat flour (and calling the product “grahams” allegedly
represents that it’s all graham flour, since grahams is allegedly the common or
usual name for the flour). Plaintiffs alleged that reasonable consumers would
expect graham flour to predominate, but it doesn’t. Truthful suggested names:
“crackers made with graham flour,” “graham-flavored crackers,” or “crackers
with X% graham flour.” Plaintiffs also alleged that predominately graham flour
crackers are available, including as institutional versions of these very
products made for schools (since the ones sold in stores don’t meet nutritional
standards/the USDA’s grain crediting standards). 

Similarly, consumers allegedly expect that honey and
molasses are to be the predominant, but not necessarily the exclusive,
sweeteners for graham crackers as opposed to refined, white sugar. 

The recommendation: No. First, the word “graham” in
“grahams” or “graham crackers” “does not connote graham flour.” The predominant
meaning is “a slightly sweet, darker-colored, rectangular, and perforated
cracker … a type of cracker that is used in desserts like s’mores.” Reasonable
consumers wouldn’t think that graham means “graham flour,” and as a result
assume that graham flour is either the predominant ingredient in the product or
that graham flour predominates over other types of flour. As with the name Coca-Cola,
the descriptiveness has been lost. 

Plaintiffs pointed to dictionary definitions that said that
a graham cracker was “a slightly sweet cracker made of whole wheat flour,” or
“a semisweet cracker, usually rectangular in shape, made chiefly of whole-wheat
flour,” but the products indisputably contain graham flour. And the definitions
didn’t agree that graham flour had to predominate. [That strikes me as overreading.
“Made of” at least implies something like predominance, especially compared to “made
with,” and “chiefly” is pretty clearly about predominance.] “Such a variation
between ostensibly reasonable definitions suggests that Mondelez’s use is necessarily
not misleading or deceptive.” [No, it suggests that it’s not literally false,
which is not the same thing.] 

The fact that other graham crackers, including other
products with the same name sold to institutions, have more graham flour didn’t
matter. Putting the word “graham” before “cracker” still wouldn’t lead a
reasonable consumer to assume predominance. 

The result would be different if the label said “Crackers
Made with Graham Flour.” [Compare treatment of the dictionary definitions above
….] In Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018), the court found
that it was plausible that labelling of Cheez-It crackers as “whole grain” and
“made with whole grain” caused reasonable consumers to believe the grain in the
product was predominantly whole grain. [This distinction only makes sense if
you really believe—and I see why you might—that “graham cracker” has just become
detached from any relationship to graham flour in the same way that Coca-Cola
has become detached from a relationship to kola nuts.] Calling something a “graham
cracker” doesn’t say anything about the quantum of graham flour in the product.
[Presumably it could therefore have zero graham flour and still be a “graham cracker”—otherwise
the distinction from Mantikas really breaks down.] 

Anyway, the statement that there are “8g of whole grain per
31g serving” “remedies any ambiguity about how much whole grain is in the
product per serving.” 

Distinguishing the honey-related claims from Mantikas
was a heavier lift, but here we go: The crackers are in fact “made with real
honey.” And the products don’t state anywhere that honey is the only sweetener.
“Sweetening grahams with honey does not foreclose the use of other sweeteners
or make the representation deceptive.” Mantikas was no help because that
case distinguished claims to be misled “about the quantity of an ingredient
that obviously was not the products’ primary ingredient.” So while “reasonable
consumers are likely to understand that crackers are typically made
predominantly of grain, … [t]hat same consumer, confronted with the claim
that a cracker is ‘made with real vegetables,’ ” for example, “likely would not
likely conclude that the cracker was made predominantly of vegetables.” Here, reasonable
consumers wouldn’t think that “made with honey” means the grahams contain more
honey than sugar. Thus, “similar representations about non-dominant ingredients
are non-deceiving.” [Doesn’t exactly get at the precise question, where an
ingredient plays a particular function but isn’t actually the predominant
ingredient playing that function. The closest analogy is probably the juice
cases: if you say “made with real pomegranates” and show only a pomegranate on
the label, and in fact the juice is 95% grape and 5% pomegranate, is that deceptive?]

 

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