CHICAGO — A class action lawsuit alleging Mondelez's belVita brand breakfast crackers aren’t nutritious enough has been dismissed for a second time, and this time it cannot be refiled.

U.S. District Judge Thomas M. Durkin issued the ruling on Sept. 27 in Chicago, noting that there was a previous complaint that had been dismissed by the court. The plaintiff, Judy Spector, had refiled the case. The new complaint has now been dismissed, with Durkin holding that Spector failed to allege specific facts that were adequate enough to make a case for false advertising. 

Spector originally brought suit against Mondelez International Inc. in 2015, claiming its belVita Breakfast Biscuits and belVita Breakfast Bites did not provide “four hours of nutritious steady energy” as advertised. She alleged Mondelez said the biscuits had to be consumed with milk to get the extra energy, which she alleged wasn’t clear to the consumer.

“In the amended complaint, [the] plaintiff again alleges falsity, but this time pleads different facts to show that the products do not provide the promised four hours of steady energy," Durkin said in the decision. "The question before the court is whether these new facts are adequate to support a plausible false advertising claim.” 

Durkin said the new arguments cannot merely allege, but “must rise to the level of being plausible.”

In the amended lawsuit, Spector didn’t cite any studies to back up her claim that belVita’s four-hour energy claim is false, but instead relied on “regulatory warnings and cautionary statements," which were not enough, according to Durkin, who dismissed the second complaint.

“[The] plaintiff’s claim of falsity is not supported in a direct way by any of the materials she cites," Durkin said in the opinion. "Instead, [the] plaintiff relies on inferences, assumptions and leaps from general principles... [The] plaintiff already has been given the opportunity once to cure the deficiencies in her pleading, and the court sees no basis for allowing any other try. Accordingly, dismissal is with prejudice."

Spector was represented in the action by the firms of Wolf Haldenstein Adler Freeman & Herz LLC, of Chicago; Pomerantz LLP, of Chicago; and Shepherd Finkelman Miller & Shah, of Ft. Lauderdale, Fla.

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

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Jenner & Block LLP Pomerantz LLP U.S. District Court for the Northern District of Illinois

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