Court Puts Cheez-It Class Action Back on the Shelves

Prominently advertising “whole grain,” these images of Cheez-It packaging appear in a Dec. 11, 2018, decision where the Second Circuit revived a class action against the Kellogg Co.

MANHATTAN (CN) — Reviving a federal class action over healthful branding that appears on boxes of Cheez-Its, the Second Circuit found Tuesday that the “whole grain” slogan could mislead consumers.

While Cheez-Its usually come in a package that says either “Whole Grain” or “Made with Whole Grain,” the ingredients list puts enriched white flour at the top. Because the snack contains just 5 to 8 grams of whole grain, lead plaintiffs Kristen Mantikas, Kristin Burns and Linda Castle claimed in a 2016 lawsuit that the labeling was deliberately deceptive.

U.S. District Judge Sandra Feuerstein dismissed the case last year for failure to state a claim, but a three-judge panel of the Second Circuit decided Tuesday that the case should go to trial.

“The representation that a cracker is ‘made with whole grain’ would thus plausible lead a reasonable consumer to conclude that the grain ingredient was entirely, or at least predominantly, whole grain,” U.S. Circuit Judge Pierre Leval wrote for the court.

Kellogg, which makes Cheez-Its, failed to sway the court that the cracker’s mere inclusion of at least some whole grain means that the labeling is not misleading,

“Such a rule would permit Defendant to lead consumers to believe its Cheez-Its were made of whole grain so long as the crackers contained an iota of whole grain, along with 99.999 percent white flour,” the 16-page opinion states.

Michael Reese, who represents the consumers, applauded Tuesday’s reversal.

“This is a very important decision for consumers,” Reese said in an email. “It holds you cannot promise consumers something on the front of a package, and then try to disclaim that on the back. It requires truth in labeling.”

Kenneth Lee, an attorney for Kellogg with the firm Jenner & Block, did not respond to email seeking comment.

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