CHICAGO — A federal judge won’t completely halt a class action alleging General Mills fraudulently labeled products like Gushers and Fruit by the foot by denying the presence of artificial flavors.
David Hayes filed his complaint in August 2019, and amended it two months later, accusing General Mills of violating the Illinois Consumer Fraud and Deceptive Business Practices Act, along with claims of common law fraud, unjust enrichment and breach of express warranty. He said the company’s fruit-based snack products contain mailc acid, an artificial flavor, and cannot be labeled otherwise.
General Mills moved to dismiss the entire complaint, but in an opinion issued July 29, U.S. District Judge John Kness said Hayes’ allegations were sufficient at this stage, with the exception of his request for an injunction.
According to Kness, Hayes said General Mills uses malic acid specifically because they make the resulting products taste “tart and fruity,” and as such each product’s fruit flavors “are at least partially artificial.” In arguing for dismissal, General Mills agreed the acid is legally an “artificial” ingredient, but denied making deceptive statements because the acid isn’t a flavor, but an enhancer.
Kness said the U.S. Food and Drug Administration’s “regulations recognize that malic acid can have a variety of functions, including as a flavor, a flavor enhancer, or a pH control agent,” but noted Hayes specifically alleged the acid combines with sugar to simulate fruit flavors. Yet General Mills said the FDA also recognizes sugar as an enhancer.
“As General Mills sees it, if sugar and malic acid serve the same function in the products — to impart a tart, fruity flavor as Hayes alleges — then the malic acid, like sugar, must be a flavor enhancer, not a flavor,” Kness wrote. “But as numerous district courts have recognized, the question of whether malic acid functions as a flavor or a flavor enhancer in a particular food product is a factual dispute inappropriate for resolution on a motion to dismiss.”
Finding it premature to render a factual judgment, Kness said Hayes’ claims the labels could be deceptive to a reasonable consumer need to plead past initial pleadings. He said the same logic supports the common law claims, and refused to dismiss those counts as well.
General Mills also argued the 1990 Nutrition Labeling and Education Act pre-empts Hayes’ claims because it explicitly prohibits states from imposing any requirements on food labels that aren’t identical to federal guidelines. However, Kness said, that argument also is predicated on General Mills’ insistence that Hayes failed to allege the malic acid serves as a flavor, which he reiterated remains an unsettled question.
Kness did agree to dismiss Hayes’ request for an injunction forcing General Mills to change the way it markets the products. Hayes said he wouldn’t have bought the contested products had he known about the use of the malic acid, but that alone doesn’t show how his rights remain threatened going forward.
“Both the Seventh Circuit and other federal courts in Illinois have denied requests for injunctive relief where a plaintiff alleges he was deceived into purchasing a product he did not want and, because of the alleged fraud, would be unlikely to purchase the product again,” Kness wrote. “Now that Hayes is aware of General Mills’ conduct, it is unlikely that he will purchase the Products again. This is fatal to his claim for injunctive relief.”
Kness also said the likelihood of other customers buying the products doesn’t establish the potential for personal harm he must demonstrate to pursue an injunction.
Hayes is represented in the case by attorney Todd M. Friedman and others with the Law Offices of Todd M. Friedman, of Woodland Hills, Calif., and Chicago.
General Mills is represented by attorneys Charles C. Sipos, Lauren W. Staniar and others with the firm of Perkins Coie LLP, of Seattle and Chicago.