Cross-posted by Forbes.com at WLF’s contributor site
Last October, a WLF Legal Pulse post, CSPI’s Fruit-by-the-Foot Suit: That Which You Didn’t Say is Untruthful, critiqued a complaint Center for Science in the Public Interest (CSPI) filed in California federal court. The suit alleged that the truthful information General Mills placed on its packaging violated California and Minnesota consumer protection laws. Yes, you read that right. CSPI didn’t take issue with the truthfulness of the statements, but argued that the information on the package (and information left off the package) taken as a whole deceived consumers into thinking Fruit Roll-Ups® and Fruit-by-the-Foot® were “healthy.”
On February 17, General Mills filed a motion to dismiss the suit. In addition to arguing that the complaint fails to meet federal court pleading requirements and that a California citizen purchasing Fruit Roll-Ups® in California cannot invoke Minnesota law, the defendants (pardon the pun) label the suit as a blatant attempt to judicially amend federal law. The federal Nutrition Labeling and Education Act (NLEA) and its implementing regulations expressly preempt any state law requirement (statute, regulation, or court-imposed remedy) that is “not identical” to federal rules.
So phrases on the Fruit Roll-Ups® and Fruit-by-the-Foot® packages like “Fruit Flavored,” “Naturally Flavored,” “Low Fat,” and “A Good Source of Vitamin C” are permitted under the NLEA and cannot be altered by any state official. Also, under the NLEA, the amount of added sugar, the presence of artificial colors, and a product’s lack of fiber don’t disqualify General Mills from making such statements. Finally, General Mills’ failure to include the nutritionally insignificant amount of trans fat in the products – a fraudulent misstatement according to the plaintiff – is in compliance with a FDA rule that requires companies to list zero grams of trans fat if the amount is less than 0.5 grams.
If CSPI is unhappy with the NLEA and its regulations, seeking court-ordered amendments through state law isn’t the way to seek change. Such class action abuse wastes shrinking judicial resources and forces companies to divert funds away from the business of creating consumer products (which consequently creates jobs). Judge Samuel Conti will hopefully dispose of this unhealthy lawsuit soon after the briefing is complete.