• Whole Foods has moved to dismiss a consumer class action that alleges that its “365 Everyday Value Organic Instant Oatmeal, Oats and Flax” product is deceptively advertised because it misleads consumers about the presence of sugars and non-whole grain ingredients.
  • Specifically, in regard to the sugar allegation, Plaintiffs had alleged that “dehydrated cane juice solids” misleads consumers into thinking that this ingredient was something other than sugar. Whole Foods countered that the front label made no representation as to the product’s sugar content and that the product’s back label could not have deceived any reasonable consumer because the nutritional fact statement disclosed that the product contained 11 grams of sugar. Whole Foods also argued that Plaintiffs had not alleged what they understood “dehydrated cane juice solids” to be and that consumers would not be surprised that oatmeal is sweetened by sugar.
  • In regard to the whole-grain claim, Plaintiffs had alleged that the use of a whole grain stamp on the front label misled consumers into thinking that product contained only whole grains. Whole Foods argued that this was an unreasonable interpretation because the product’s name and images on the front of the product label disclosed that it contained Flax, which was not a whole grain. Further the whole grain stamp itself suggested that other ingredients were present by stating “100% Whole Grain – 18 g or more per serving.”
  • In addition to these arguments that a reasonable consumer would not be deceived by the product’s sugar and whole grain representations, Whole Foods also made a number of other arguments including that that Plaintiffs did not have a private right of action to enforce the Federal Food, Drug, and Cosmetic Act regulations.
  • Keller and Heckman will continue to monitor and report on food and beverage class action litigation.