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From Antitrust Law Daily, May 13, 2013

“Nature Valley” Product Advertising May Be Deceptive

By Jody Coultas, J.D.

General Mills, which manufactures the "Nature Valley" line of products, could be liable for labeling its products as "natural" despite containing artificial or synthetic ingredients, the federal district court in Oakland has held (Janney v. General Mills, May 10, 2013, Hamilton, P.).

Complaining purchasers alleged that the packaging and advertising of Nature Valley products was deceptive because the products were labeled as "100 % Natural" and "All Natural" despite containing high fructose corn syrup, high maltose corn syrup, and/or maltodextrin, and rice maltodextrin. General Mills allegedly conjured images of "naturalness" by using images of forests, mountains, and seaside landscapes to capitalize on consumers’ preference for all-natural foods and the association between such foods and a wholesome way of life.

Because referring the case to the U.S. Food and Drug Administration (FDA) "would be likely prove futile," the court declined to apply the primary jurisdiction doctrine. General Mills argued that the court should dismiss the entire action under the primary jurisdiction doctrine because any decision regarding the meaning and use of the label "natural" should be made by the FDA. However, the FDA has expressly declined to define "natural" in any regulation or formal policy statement. The purchasers also claimed that they were not asking the court to define "natural," but to decide whether General Mills’ marketing could mislead reasonable consumers. The court also noted that the FDA has signaled a relative lack of interest in devoting its limited resources to what it evidently considers a minor issue, or in establishing some "uniformity in administration" with regard to the use of "natural" in food labels.

The claims that the use of the terms "Natural" or "100% Natural" on the packaging or advertising was deceptive because those products contained HFCS, HMCS, and/or Maltodextrin were sufficient, according to the court. The purchasers presented sufficient evidence that they relied on the claims that the products were "Natural," and that General Mills used those terms to induce the purchasers.

However, the purchasers failed to plead with particularity the claims relating to the online marketing sources (the Nature Valley website, Facebook, Flickr, YouTube, and Twitter) and the "unidentified products." The purchasers were required to identify specific advertisements and promotional materials, when they were exposed to the materials, and how such materials were false or misleading. However, the purchasers did not identify any misrepresentations made in the online sources. The purchasers also failed to identify every product that allegedly contained false advertising. In order to plead with particularity, the purchasers needed to specify the exact misleading statements. Vague descriptions of the products allegedly at issue could not support the claims.

The case is No. C 12-3919 PJH.

Attorneys: George Richard Baker (Baker Law PC) for Judith Janney. Charles Christian Sipos and David T. Biderman (Perkins Coie LLP) for General Mills.

Companies: General Mills

MainStory: TopStory Advertising CaliforniaNews

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