Court Isn’t Sweet on Honey False Ad Suit

Advertising Law

A Massachusetts federal court threw out a lawsuit against Honey Bunches of Oats brought by consumers who claimed that the product packaging and marketing misled them about the cereal’s honey content.

A pair of Massachusetts residents purchased cereals in Post’s Honey Bunches of Oats line of products under the mistaken belief that honey was the cereal’s exclusive or primary sweetener. In their false advertising class action, they claimed that their belief was based on several television commercials that “emphasized the presence of honey” as well as Post’s branding and packaging, which featured a wooden honey dipper dripping with honey and the outline of a bee trailing a broken line to indicate flight.

Post moved to dismiss the suit. The plaintiffs failed to check the ingredient list, the defendant told the court, where honey was listed as the fifth most prominent sweetener. Therefore, they failed to plausibly allege that a reasonable consumer would be deceived by the packaging at issue.

U.S. District Court Judge Allison D. Burroughs sided with the defendant.

Food and Drug Administration (FDA) regulations provided the basis of whether the cereal packaging was “false or misleading” under state law without running into preemption problems with the Food, Drug, and Cosmetic Act.

FDA regulations clearly permit the use of the word “honey” and the associated imagery, the court said, because it was a primary recognizable flavor as well as an ingredient.

“Given that the FDA regulations on flavors permit primary recognizable flavors to be identified by ‘word, vignette, … or other means’ and specify that the ‘common or usual name of the characterizing flavor’ shall accompany the name of a food where that flavoring product is the source of the flavor, the Court concludes that, where honey is a flavor as well as a sweetener, Plaintiffs have not plausibly alleged that Post’s use of the word ‘honey’ and the images of a sun, bee and honey dipper is ‘false or misleading in any particular’ within the meaning of [the regulations],” Judge Burroughs wrote.

Even if the complaint alleged that honey was not among the cereal’s primary recognizable flavors, the court would have reached the same conclusion because the packaging referenced in the complaint made “no objective representation about the amount of honey, leaving the cereal’s accurate list of ingredients as the only unambiguous representation of the amount of honey relative to other sweeteners.”

The court distinguished false advertising cases where the packaging misled consumers by inaccurately suggesting a particular amount of a key ingredient (such as the use of a “100%” claim) or where the product was entirely devoid of a food or ingredient that is part of its name (marketing a product as “fruit juice snacks” when it did not contain fruit juice, for example).

“Even a reasonable consumer who presumed honey to be a sweetener rather than a flavor would see that Honey Bunches of Oats did not claim to be sweetened exclusively or primarily with honey and therefore would have recognized that the cereal might be sweetened with some honey, but also with other sweeteners,” the court said. “Assuming such a consumer cared about how the cereal was sweetened, he or she would then have checked the ingredient list and discovered that honey, although a sweetener, was not the most prominent.”

The court granted Post’s motion to dismiss, stating “that under the reasonable consumer standard, a consumer could not reasonably have concluded that Honey Bunches of Oats was primarily sweetened with honey based upon Post’s use of the word ‘honey’ and the related graphics appearing on the box.”

To read the memorandum and order in Lima v. Post Consumer Brands, LLC, click here

Why it matters: The Massachusetts federal court was not persuaded that a reasonable consumer would be misled about the honey content of the cereal, particularly given the accurate ingredient list on the packaging and the fact that no claims were made as to an objective, measurable quantity of honey.



pursuant to New York DR 2-101(f)

© 2024 Manatt, Phelps & Phillips, LLP.

All rights reserved