Alston & Bird's Food & Beverage Digest | September 2019

FOOD  BEVERAGE D I G E S T S E P T E M B E R 2 0 1 9 | 5 that it would be “hard pressed” to see how the plaintiffs could allege future harm if they did not want products that do not contain real white chocolate. Finally, the court rejected the plaintiffs’ challenge to the“Natural Flavor” labeling on the bars, finding that this labeling only conveys that the white chocolate and macadamia nut taste comes from “flavor rather than the real ingredient.” Despite this stern analysis, the district court nevertheless granted the plaintiffs leave to amend their complaint, seemingly unconvinced that an amendment would be futile at the pleadings stage. Plaintiffs Left Bitter After Failed Sugary Cereal Lawsuit Truxel v. General Mills Sales Inc. , No. 4:16-cv-04957 (N.D. Cal. Aug. 13, 2019). A federal district court recently dismissed a putative class action against General Mills alleging that the company falsely advertised its cereal and snack products as healthy when, in fact, they contain large amounts of added sugar. The plaintiffs had alleged that the giant cereal maker had tricked consumers into thinking 52 of its best-selling products (such as Honey Nut Cheerios) were healthy when in reality they contained large amounts of added sugar. The district court found, however, that after four attempts to do so, the plaintiffs could not plausibly claim they were misled about the sugar content of these products because the products’ packaging contained information about the ingredients and sugar content (which was disclosed on the side panel of ingredients and front of the products’ labeling). The court also recognized that the FDA has not set a daily recommended value for sugar intake and, therefore, there is no prevailing view“on just how much sugar is healthy.” Common Sense Prevails as Court Rejects Plaintiffs’ Honeyed Claims Lima v. Post Consumer Brands LLC , No. 1:18-cv-12100 (D. Mass. Aug. 13, 2019). A Massachusetts federal court dismissed the plaintiffs’ putative class action alleging that Post impermissibly created the impression that its Honey Bunches of Oats cereal is primarily sweetened with honey. According to the plaintiffs, television commercials and the giant cereal maker’s branding and packaging led them to believe that honey was the main sweetener, when in fact it is sweetened primarily with sugar and corn syrup. The court dismissed the plaintiffs’ claims, finding that no reasonable consumer could have concluded that the cereal was primarily or exclusively sweetened with honey based on Post’s use of the word“honey”and the related graphics depicting honey and bees appearing on the box. The court determined that these references and graphics instead could be a reference to a flavor—or even simply an ingredient—of the cereal. Either way, the court reasoned, Post’s use of the word “honey” and the associated imagery on its packaging was permitted, and the plaintiffs had no reasonable basis for claiming that they believed that honey—which they conceded was an ingredient of the cereal—was its primary sweetener. Accusers’ Chirping Kills False Ad Suit over All “Natural” Chicken Friends of the Earth v. Sanderson Farms Inc. , No. 3:17-cv-03592 (N.D. Cal. July 31, 2019). Sanderson Farms, the third-largest poultry producer in the U.S., won a motion to dismiss false advertising claims filed by Friends of the Earth and Center for Food Safety. The two nonprofits alleged that Sanderson’s chicken was falsely labeled as “100 percent natural,” despite containing antibiotics. But because the pair admitted in depositions that they would have advocated against Sanderson’s use of antibiotics even if Sanderson hadn’t run any “all natural” advertisements, the court found that the plaintiffs could not establish Article III standing. Granting Sanderson’s motion to dismiss, the district court found that the plaintiffs failed to “establish that their alleged injury is traceable to the challenged ads at issue.” After running through a fulsome list of reasons showing that the plaintiffs were acting “in furtherance of their missions to address antibiotic use generally” rather than as a “reaction to Sanderson’s advertising,” the court noted that some of the “most damaging” evidence against the plaintiffs was uncovered during the groups’ own depositions, where they admitted that they planned to oppose Sanderson’s use of antibiotics regardless of any advertising campaign. That evidence helped to show the court that the plaintiffs “were incurring ordinary program costs regardless of Sanderson’s advertising.” Such expenses, the court held, “cannot be transformed into an injury-in-fact under Article III.” Procedural Posture: Denied Court Asks for Another Helping of In re Hyundai in Dietary Supplement Suit Capaci v. Sports Research Corp. , No. 2:19-cv-03440 (C.D. Cal. Aug. 5, 2019). In our August edition, we analyzed the impact of a recent Ninth Circuit opinion on the settlement of nationwide class actions. Now, a federal district court wants another serving of the Ninth Circuit’s analysis in denying a sports nutrition company’s motion to dismiss. The plaintiffs alleged that the company’s dietary supplements were falsely advertised as “a great way to support your overall weight management plan.” To the contrary, the plaintiffs claimed, the supplements fare no better than a placebo because their active ingredients are incapable of providingweight loss benefits. The dietary-supplement maker moved to dismiss the complaint, raising a range of arguments for why the complaint should be dismissed.