In The Courts
CSPI’s litigators win better food labeling and more honest marketing, and encourage reforms that benefit consumers.
CSPI has been fighting for consumers’ rights in the food industry for decades. Originating in 2004, CSPI Litigation pioneered the field of food law, and ever since has been wielding the power of litigation, negotiation, and partnership to tackle some of the toughest issues in food and nutrition. There is a cornucopia of deceptive marketing out there about nutrition and health. We exist because consumers deserve good lawyers who fight to put their interests front and center.
Recent litigation highlights
Vitaminwater / Coca-Cola
Represented by CSPI, co-counsel Reese LLP and others, two classes of California and New York consumers sued Coca-Cola in 2009 for false and misleading advertising of its vitaminwater line of products. When the suit was initiated, vitaminwater labels bore claims like “vitamins + water = what’s in your hand,” “vitamins + water = all you need,” and “this combination of zinc and fortifying vitamins can ... keep you healthy as a horse,” or “... support optimal metabolic function.” A bottle of vitaminwater has, on average, 8 teaspoons of sugar, or 32 grams, however. The American Heart Association recommends a daily ceiling of six teaspoons of sugar per day for an adult female, nine for men, and proportionately less for children depending on weight. So consumers are getting more than vitamins and water, or a serving of health.
In March 2016, following final approval of their agreement by the Court, the parties settled the litigation. Pursuant to settlement terms, Coca-Cola is now prohibited from using the above and like health labeling claims, and will indicate conspicuously on front of label packaging that vitaminwater is “with sweeteners” and “120 calories” – not just vitamins and water.
Cheerios Protein / General Mills
Represented by CSPI and co-counsel Reese, LLP and Kaplan Fox, LLP, three private plaintiffs filed a class action suit against General Mills in late 2015 alleging that it falsely and misleadingly markets Cheerios Protein as a high-protein and healthful alternative to original Cheerios. Unlike other Cheerios products, such as Chocolate Cheerios or Ancient Grain Cheerios, “protein,” though added to the name, does not distinguish Cheerios Protein from original Cheerios… sugar does. Cheerios Protein has 16 to 17 times more sugar than the original, and only negligibly more protein. In fact, if you compare calorie-comparable serving sizes of the two, the protein difference is basically non-existent, and the sugar ratio soars even higher. The December 2015 issue of The Atlantic featured the litigation in an article, Breakfast Cereal’s Last Gasp, as did a segment of Good Morning America.
Algal-900 DHA / CVS
Represented by CSPI and co-counsel Reese, LLP and Mehri & Skalet, LLP, in February 2016, two plaintiffs filed suit on behalf of a nation-wide class against CVS for false and misleading advertising of its Algal-900 DHA supplement. Part of a broader practice of mislabeling in the $33 billion supplements industry, as detailed by reports of the Office of Inspector General of the Government Accounting Office, extensive reporting in The New York Times, and investigations by the New York Attorney General, CVS labels its Algal-900 product with conspicuous claims of “CLINICALLY SHOWN MEMORY IMPROVEMENT.” The back label claims a clinical finding of “someone 7 years younger.” Not only does established science say otherwise (with the exception of infants), but the Federal Trade Commission already investigated identical claims by CVS’s supplier, determined them to be false and misleading, and barred the supplier from making them. At a cost of $45 per one-month supply, this is a fraud that seniors can do without. The July 2016 issue of AARP [Magazine] featured a description of the litigation and interview with the plaintiffs and counsel.
In early 2015, CSPI Litigation undertook an investigation of misleading labeling in the infant and toddler foods industry. CSPI found that consumers were commonly misled into believing they purchased nutritious foods, paying a premium price, because of names with fancy or healthy ingredients like Green Bean, Pear & Greek Yogurt; Kale Apple Mango; and Broccoli Red Lentil Oat. In reality, many of the infant and toddler food products were not especially nutritious and were comprised predominantly of cheaper, sugar-laden ingredients like apple puree. By contrast, kale, quinoa, and the like, were often only minor ingredients. CSPI Litigation’s investigation was featured on Good Morning America, and led to a pioneering agreement with Plum Organic’s (Campbell’s) that requires the name of an infant food, and the imagery on the front packaging, to reflect predominant ingredients. CSPI Litigation’s work continues actively in this area.
A few highlights from past litigation
Kentucky Fried Chicken and Burger King / Trans Fat
In 2006, on behalf of private plaintiffs, CSPI Litigation filed suit against Kentucky Fried Chicken (“KFC”) based on its use of trans fat in its foods and failure to warn customers of the risks. Finally banned by the Food and Drug Administration in 2015 because of its connection to coronary heart disease, at the time, KFC’s Extra Crispy Combo contained 15 grams of trans fat. Shortly after the suit was filed, KFC agreed to cease its use of trans fat in cooking, and the suit was withdrawn.
Similarly, CSPI sued Burger King in 2007. Although dismissed on procedural grounds, Burger King quickly agreed to halt its use of trans fat in cooking as well.
Airborne / Cold Remedy
In 2007, CSPI joined as counsel to a class action against Airborne, a dietary supplement that was marketed as a “natural cold remedy” that “provides 3 hours of protection against the common cold.” The label and other marketing also claimed clinical support. Citing the lack of scientific evidence to substantiate this, and the potential harm in digesting excessive amounts of Vitamin A (contained in the supplement), the plaintiffs ultimately obtained a settlement for both injunctive relief – barring use of these claims prospectively – and monetary damages for the class in the amount of $23.3 million.
Kellogg / Kid-targeted Advertising
In 2006, with co-counsel Mehri & Skalet, PLLC, CSPI threatened to sue Kellogg for marketing junk foods (sugary cereals, Pop Tarts, and more) to kids. Following negotiations, in 2007, Kellogg agreed to adopt minimum nutrition standards for marketing to children. Numerous other companies followed suit.