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General Mills files motion to dismiss fruit snacks lawsuit: ‘We never said they were healthful and nutritious’

By Elaine Watson , 02-Mar-2012

General Mills has filed a motion to dismiss a class action lawsuit accusing it of presenting products that were “little better than candy” as “healthful and nutritious”.

In the complaint , filed last October in California on behalf of plaintiff Annie Lam, she alleges General Mills misled consumers by presenting Fruit Roll-ups, Fruit Gushers and Fruit by the Foot as healthful.

In fact, these products “trans fat, large amounts of added sugars, and potentially harmful artificial food dyes; lack significant amounts of real, natural fruit; and have virtually no dietary fiber”,argued Lam, who is represented by the Center for Science in the Public Interest (CSPI) and law firm Reese Richman.

“Although the products were marketed as being healthful and nutritious for children and adults alike, selling these Fruit Snacks was little better than giving candy to children”.

Labels ‘plainly disclose’ that products contain fat, sugar and artificial colors

However, in a motion to dismiss the case filed last month, General Mills said: “Despite intimations in the complaint, the labels of Fruit Flavored Snacks do not contain affirmative representations that the products are ‘healthful’ or ‘nutritious’.”

It added:“Plaintiff alleges that these statements give the misimpression that Fruit Flavored Snacks are ‘healthful and nutritious’ despite containing fats, sugars, and artificial colors — a fact that the Fruit Flavored Snacks labels plainly disclose.”

Claims comply with federal food labeling legislation

Meanwhile, all of the claims on the packaging complied with federal labeling regulations, insisted General Mills, which is represented by Perkins COIE LLP.

“What Plaintiff seeks to ‘stop’ are lawful, federally compliant statements on the labels of these products."

And any attempt to suggest that new rules should apply to food labels was “expressly preempted by the controlling federal regime”, it said.

“Nearly all of the statements Lam attacks are truthful and accurate labeling claims that General Mills is authorized to make under the Federal Food, Drug & Cosmetic Act and accompanying regulations.”

Specifically, the claims 'fruit flavored' and 'naturally flavored' are compliant with the law, while a 'Good Source of Vitamin C, and 'Low Fat,' are both permitted nutrient content claims provided the conditions of use are met, it noted.

As for the suggestion that Fruit Flavored Snacks labels are misleading because they contain small amounts of trans fat, General Mills noted that if a product contains less than 0.5g of trans fat per serving, the manufacturermustdeclare that it haszerograms of trans fat.

Meanwhile, the fact that a product contains sugars, artificial colors and trans fat does not disqualify it from making positive claims about other aspects of its composition under federal law, it stressed.

“The presence of sugar is not a disqualifying nutrient which would prohibit the defendants from ‘touting the purported benefits’ of the other ingredients in their beverage, whether through health claims or express or implied claims of nutrient content.”

CSPI: Specific claims might be accurate, but overall impression is misleading

While the CSPI acknowledged that theFruit Roll-Ups Strawberry product did contain fruit-derived ingredients including pear from concentrate, fruit pectin and natural flavors, General Mills’ phrase ‘Made from Real Fruit’ on pack was nevertheless misleading, litigation director Stephen Gardner told this publication last year.

Asked why the CSPI described legal artificial food colors in the snacks as “potentially harmful”, he added: “[They are]legal as far as the Food and Drug Administration is concerned, since they are approved food additives, but they are not necessarily legal under state consumer protection or food and drug laws. Federal approval of an additive is a floor, not a ceiling.

“And regardless what FDA does, or fails to do, many of these additives are now pretty generally accepted not to be safe, especially for kids.”

Is there a precedent for suits vs firms claiming products with trans fats are ‘healthy’?

While the level of trans fat from partially hydrogenated oils in the products was very low, he acknowledged, “a food with trans fat, no matter how little, still contributes to excess trans fat on a cumulative basis.”

He added: “At least one court has held that a claim for deception exists for the marketing of a food with trans fats.”

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