Buyers Want An End To 7-Year Pause In Kix Cereal Suit – Law360 (subscription to Law360 required)

  • In 2015, when now ubiquitous “natural” lawsuits first began proliferating, FDA solicited comments on the use of the term “natural” in the labeling of human food products, including foods that are genetically engineered or contain ingredients produced through the use of genetic engineering.  As reported here, action was stayed in numerous lawsuits challenging “natural” claims on various bases.  Although the comment period closed in May 2016, FDA has not taken any further action to define “natural.” 
  • In an April 4, 2023 letter (see Law360), consumer plaintiffs claiming General Mills lied about Kix cereal made with genetically modified (GM) corn being “all natural” asked a New Jersey federal judge to end a nearly 7-year old stay of the proposed class action, arguing that food regulators are no closer today to adopting rules on bioengineered food being labeled “natural” than they were when the litigation was first stayed in 2016.  Aside from a brief period in 2021 when both sides requested a stay while pursuing a deal to end the litigation, the plaintiffs have vigorously opposed the stay, which has nevertheless been continued at least 10 times since it was imposed on June 13, 2016.  The plaintiffs project that the case may quickly settle if the stay is lifted. 
  • As significant time has passed without further movement since FDA signaled potential activity in 2015, stays have been lifted in some “natural” class action litigation that had been paused pending FDA action.  For example, in the Chobani litigation discussed here, the judge explained in lifting a 2-year stay in 2019 that the court “cannot sit idly by on an illusory assurance that something is likely to happen.”  In the General Mills lawsuit, however, the court may be again willing to wait for FDA due to a lack of urgency where the phrase “natural” was discontinued on Kix boxes in 2016.