How much whole grain must be in a Cheez-It cracker to label the box “Whole Grain” or “Made With Whole Grain”? Evidently that’s a matter of law, according to the U.S. District Court of Appeals for the Second Circuit. A three-member panel overruled the district court’s decision to dismiss the class action alleging “false and misleading” labeling on Kellogg’s Cheez-It whole grain crackers for failing to make a claim. As such, the lower court will hear the case on its merits. Good thing this case isn’t about how much cheese is in a Cheez-It. Perhaps Kellogg should label the crackers “Hole Grain”.
What Constitutes Whole Grain?
At issue is how much whole grain flour must be used in order for a package to be labeled “Whole Grain”, and not confuse or mislead the consumer into thinking the item is healthier than it is. Though Kellogg opted to label the box “Whole Grain”, the crackers are made predominantly with enriched white flour, and contain just five to eight grams of whole grain per serving. Lead plaintiffs Kristen Mantikas, Kristin Burns, and Linda Castle allege that the labeling was deliberately deceptive. Kellogg tried to convince the appellate court that any inclusion of whole wheat in the crackers makes the labeling not misleading. However, the court disagreed, claiming “such a rule would permit Defendant to lead consumers to believe its Cheez-Its were made of whole grain so long as the crackers contained an iota of whole grain, along with 99.999 percent white flour,” the opinion states.
FDA: Little Bark and No Bite
Perhaps the crux of the issue is that the Food and Drug Administration (FDA) has very relaxed guidelines about what can be labeled “whole grain”. FDA’s guidelines simply ‘recommend’ that a product be labeled as whole grain only when all of the flour ingredients are entirely from whole grain or whole wheat flours. However, there is little to no enforcement of this guideline, and certainly no penalty. Therefore, it is up to plaintiffs like these, and watchdog groups, to make sure labels are not false or misleading on a case by case basis. Luckily, though these cases are decided by jurisdiction, the remedies they seek are injunctive, such as specific changes to the packaging. Since it is not economical for most companies to have different labels in different jurisdictions, this method does create some parity throughout the country. But it is highly inefficient.
If you feel that your food packaging is misleading or untruthful, contact a local consumer protection attorney. A seasoned lawyer can listen to the facts of your case, and determine if you have an action for which to move forward, or perhaps a class action to join.