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.