Seventh Circuit Affirms Dismissal of Suit Alleging False Marketing of “Fiber Plus” Chewy Bars

on October 20, 2011 ·

Posted in Uncategorized

This week, the Seventh Circuit affirmed the dismissal of Plaintiff’s suit against General Mills Inc. and Kellogg Co. for falsely marketing their “chewy bars,” finding that Defendants were in fact compliant with FDA standards for the labeling of dietary fiber.  In Turek v. General Mills, Inc. and Kellogg Co., Plaintiff brought a suit claiming that Defendants’ labeling of its “chewy bars,” including the Kellogg chocolate chip “Fiber Plus” bar, violated the Illinois Consumer Fraud and Deceptive Business Practices Act.  Specifically, Plaintiff claimed that the principle fiber in the Fiber Plus bars is “inulin extracted from chicory root,” which as Plaintiff alleges, is different and inferior to inulin naturally found and consumed in foods such as bananas, onions, and leeks.  Plaintiff claimed that the Fiber Plus box failed to explicitly state that the principle fiber was “inulin from chicory root” or that the product contained a form of fiber that was inferior to the “natural” fiber (although the label did list “chicory root extract” and “inulin from chicory root” as one of the products).  Plaintiff alleged that inulin from the chicory root provides fewer benefits, causes stomach problems, and may be harmful to women who are pregnant or breast-feeding.

As a side note, although the Seventh Circuit affirmed the dismissal of the suit, the decision explains that the district court’s dismissal for lack of jurisdiction was not entirely accurate.  Indeed, the Seventh Circuit was “puzzle[d]” by the district court’s dismissal based on lack of federal jurisdiction and instead affirmed dismissal of the action on the merits.  The Court explained that just because Defendants had a good defense to a state law claim (such as being barred by federal law) did not mean that the complaint did not invoke federal jurisdiction.  While addressing the merits of the action, the Seventh Circuit explained that the Nutrition Labeling and Education Act (a 1990 amendment to the Federal Food, Drug and Cosmetic Act), which regulates nutrient content claims on food labels, prohibits states from imposing any requirements that are not “identical” to its requirements.  Thus, because of the narrow scope of the preemption provision of the Nutrition Labeling and Education Act, a state can only impose “identical” requirements to enforce a violation of the Act as a violator of state law. 

The issue addressed by the Seventh Circuit therefore was what requirements federal law imposed on the labeling of dietary fiber.  The relevant statutory labeling requirement (section 343(q)(1)(D)) simply requires that the “label or labeling” of food products intended for human consumption state “the amount of…dietary fiber …contained in each serving size or other unit of measure.”  Here, the side of the Fiber Plus box at issue included a box of “Nutrition Facts,” stating that a serving contains 9 grams of “Dietary Fiber” and that this is 35% of one’s “Daily Value” of dietary fiber.  In addition, the front of the chewy bar’s box states “35% of your daily fiber.”  Thus, the Seventh Circuit held that the labeling of the Fiber Plus and other chewy bars at issue were compliant with federal law.  Moreover, the Seventh Circuit explained that the disclaimers that Plaintiff wanted to add to the labeling of Defendants’ chewy bars were barred because they were not identical to the labeling requirements imposed by federal law.  The Court explained that the information required by federal law does not include a disclosure that the fiber in the product includes inulin or that a product containing inulin produces fewer health benefits than a product containing only “natural” fiber. 

Lastly, the Court emphasized that even if the disclaimers that Plaintiff wanted to add were consistent with the requirements imposed by federal law, “consistency is not the test; identity is.”  As the Seventh Circuit stated, regardless of whether such disclosures should be required (and the Court refused to comment on that irrelevant issue),“[i]t is easy to see why Congress would not want to allow states to impose disclosure requirements of their own on packaged food products, most of which are sold nationwide.  Manufacturers might have to print 50 different labels, driving consumers who buy food products in more than one state crazy.”

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