LOS ANGELES — A federal judge has ruled federal regulation of food ingredient labeling can cut short false advertising suits against foodmakers like Quaker Oats, which was recently sued over the contents of its maple and brown sugar oatmeal, which, the lawsuit claimed, contained no actual maple, only maple flavoring. 

A number of cases were consolidated into one class action in the U.S. District Court for the Central District of California, with the case of Kevin Phung taking center stage. Phung had sued Chicago-based Quaker Oats in 2016, alleging its oatmeal label was misleading and deceptive to consumers who expected actual maple syrup or maple sugar to be in the product.

Quaker had filed a motion to dismiss, basing its argument on the idea that the claim was preempted under the federal Food, Drug and Cosmetic Act (FDCA) and the Nutritional Labeling and Education Act. The motion was granted by U.S. District Judge Philip S. Gutierrez. 

"Advertisers that adhere to FDCA requirements and FDA guidelines regarding flavor labeling and refrain from indicating the product the flavor is derived from is an actual ingredient may be permitted to advertise such flavors on product packaging,” said Jesse Brody, an attorney at Manatt, Phelps & Phillips LLP, who followed the case

The law regarding whether or not a product can be labeled as containing maple can be tricky. 

Brody noted a 2016 FDA Consumer Update confirmed terms like "maple" "can be used on the label of a product that does not contain maple syrup as long as the product contains maple flavoring."

"Because Quaker Oats Company can describe the primary recognizable flavor by word and image as long as the label signifies it is 'naturally and artificially flavored,' federal law preempted the plaintiffs’ desired application of novel label requirements to the Maple & Brown Sugar instant oatmeal," he said.

But this recent ruling doesn’t necessarily mean the flavor debate litigation is dead. He noted the judge granted plaintiffs leave to amend on other grounds, including claims for express warranty and standing, as well as "a false advertising claim based on maple as a sweetener."

"While the court found that any misrepresentation or false advertising claim premised on federal compliant 'flavor' labeling would be preempted, the court noted that maple as a 'sweetener' could 'possibly avoid preemption' if successfully pled. Thus, it is possible we could see amended claims," Brody said.

Brody would advise his clients to use this as an example of what’s permissible in labeling.

“This decision is not only a successful dismissal for Quaker, but it can also serve as a roadmap for other companies in defending against similar consumer class actions," Brody said. 

Phung had been represented in the action by attorneys with the firms of Barnow and Associates, of Chicago; Blood Hurst & O’Reardon, of San Diego; the Law Office of Aron D. Robinson, Chicago; Markham Law Firm, of San Diego; Keegan & Baker, of Carlsbad, Calif.; and United Employees Law Group, of Huntington Beach, Calif.

Quaker had been represented in Chicago by the firm of Fox, Swibel, Levin & Carroll LLP, of Chicago. 

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Fox Swibel Manatt Phelps & Phillips U.S. District Court for the Central District of California

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