Dana Herra Apr. 14, 2016, 1:19pm

A northwest suburban woman who claimed she was duped by the advertising slogan on a box of breakfast biscuits lost her attempt at filing a class action lawsuit when a federal judge dismissed her claim.

U.S. District Court Judge Thomas M. Durkin ruled March 31 to dismiss the case, filed in May 2015 by Judy Spector, of Buffalo Grove, against food product maker Mondelez International, manufacturer of belVita breakfast biscuits. According to the lawsuit, Spector bought two boxes of belVita in 2015. Her decision to buy the biscuits was made in part by belVita’s advertising claim that a serving of the biscuits provides four hours of “nutritious steady energy,” she said.

In her complaint, she stated that “in other countries” Mondelez advertises belVita as providing four hours of “nutritious steady energy” only when consumed with a serving of milk. The suit said belVita’s Australian website has placed an asterisk next to its “four hours of energy” claim to draw attention to a note explaining that in the study cited, the biscuits were consumed with milk.

“Nowhere (on the U.S. website) does (Mondelez) alert consumers to the fact that, to obtain the purported four hours of ‘nutritious steady energy,’ the consumer must combine the Products with at least a serving of low-fat milk,” the lawsuit states.

The suit contends the studies Mondelez relies upon in making the “four hours of energy” claim require dairy be consumed with the biscuits – which Spector claimed also negates belVita’s marketing of the biscuits as “convenient” for those “on the go.”

The suit alleged Mondelez had violated the Illinois Consumer Fraud and Deceptive Business Practices Act, and had breached an express warranty and had been unjustly enriched through its alleged misleading marketing.

In dismissing the litigation, Durkin noted that nowhere in her suit did Spector say belVita actually failed to live up to its advertising – that is, she never claimed that the biscuits, eaten alone, failed to provide the expected four hours of steady energy.

“Plaintiff has pleaded no facts, such as personal experience or third-party studies, showing that (belVita biscuits) do not provide ‘nutritious steady energy’ as promised,” he wrote. “[I]f Plaintiff does not have any idea whether the Products provided her with four hours of nutritious steady energy, then the Court does not see how she can have a good faith basis for alleging that the … representation is false.”

Without demonstrating injury, the court wrote, the breach of warranty and unjust enrichment claims fall apart. The crux of the deceptive advertising claim hinged largely on the studies referenced on the Australian website, on which the “four hours of energy” claims are asterisked, and the addition of milk is noted. The plaintiff claimed the omission of these caveats on U.S. marketing equates to deliberately misleading American consumers, but Durkin addressed the argument as essentially a misunderstanding.

“It is Plaintiff who presumes that the statement ‘belVita plus a glass of milk’ necessarily means that a glass of milk is required. The actual statements do no more than refer to the fact that milk was consumed with the Products in the cited studies,” the court wrote. “Plaintiff commits the classic error of inferring a causal connection from a scientific study which merely references the variables in the study.”

The court has allowed Spector until May 13 to amend her complaint; if no amendment has been filed by then, the case will be dismissed with prejudice.

Spector was represented by attorneys with the firms of Wolf Haldenstein Adler Freeman & Herz LLP, with offices in Chicago and New York, and Pomerantz LLP, of Chicago.

Mondelez is defended by the firm of Jenner & Block, of Chicago.

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Organizations in this Story

Pomerantz LLP
10 South LaSalle Street
Chicago, IL 60603

Jenner & Block
330 N. Wabash Ave.
Chicago, IL 60611

Wolf Haldenstein Adler Freeman and Herz LLC
55 West Monroe Street, Suite 1111
Chicago, IL 60603

Mondelez International, Inc.
3 Parkway N
Deerfield, IL 60015

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