Serial litigation is pervasive in class-action lawsuits alleging deceptive food labeling. The same plaintiffs, routinely represented by the same law firms, file identical lawsuits in different jurisdictions against the same defendant. Similarly, the same plaintiffs and lawyers file cookie-cutter suits against numerous defendants advancing the same claims. This spaghetti-test approach allows plaintiffs’ lawyers to try out legal theories in different contexts and courts and, if they’re fortunate, create precedents for use in other cases.
But as an August 13, 2019 decision from the Food Court (the Northern District of California) demonstrates, serial litigation can just as easily sow the seeds that lead to a class action’s downfall.
Truxel v. General Mills Sales, Inc. is one of many suits brought by the same law firm on behalf of serial plaintiffs. Each suit claims that the presence of “toxic” amounts of added sugar render all health and wellness statements on the food labels deceptive under California law. Decisions in several of these lawsuits have pared down the plaintiffs’ claims and forced them to amend their complaints. The plaintiff in Truxel has amended her complaint three times in response to rulings by Judge Jeffrey S. White that relied on decisions in other, identical lawsuits.
The fourth time was not the charm for Ms. Truxel. General Mills’ motion to dismiss turned, as so many motions in food-labeling deception cases do, on whether the challenged statements would mislead a reasonable consumer. Some judges in food-labeling suits have held that jurors, not judges, should decide this “reasonable consumer question.” Judge White, however, felt confident in his authority to rule on reasonable consumer as a matter of law. In doing so, he cited another Food Court decision in a lawsuit that featured “nearly identical language in the complaint regarding the health effects of sugar,” Clark v. Perfect Bar.
Clark, Judge White explained, found “the plaintiff’s theory of deception – the precise one adopted here by the same plaintiffs’ counsel – was implausible.” Consumers, the Clark court explained, could simply look at the amount of sugar on the Nutrition Facts label and decide if that amount is “healthy” for them—”The honey/sugar content was properly disclosed – that is the end of it – period.”
Judge White adopted that reasoning and distinguished the Ninth Circuit’s Williams v. Gerber Prods. Co. decision. Truxel asserted that under Williams, a defendant cannot cure deceptive statements elsewhere on the label by point to the Nutrition Facts. The statements General Mills made on its cereal products were not deceptive, however, but were “truthful and required objective facts,” so Judge White concluded that Williams did not apply.
The court explained that consumers have to decide for themselves whether the disclosed amount of sugar is unhealthy because “there is no consensus on just how much sugar is healthy for consumption.” Judge White pointed to decisions in cases like Becerra v. Coca-Cola Co., where the plaintiff’s supporting scientific studies failed to show a causal link between sugar-sweetened beverages and weight gain. That shortcoming factored heavily in those courts’ decisions to grant defendants’ motions. The studies Truxel relied upon were equally unhelpful, as none of them assessed the impact of added sugar in cereal.
Judge White put a final, merciful end to this serial plaintiff’s anti-cereal crusade by granting General Mills’ motion to dismiss with prejudice.
The tone and reasoning of Judge White’s opinion reflect weariness with serial food-labeling litigation. He vigorously applied the unhelpful precedents serial plaintiffs created in identical lawsuits against Truxel in Truxel v. General Mills Sales, Inc.
Several of these deceptive-due-to-added-sugar class actions remain alive. The presiding judges in those cases should follow Judge White’s lead and hoist the serial plaintiffs and their lawyers on their own collective petard.
Also published by Forbes.com on WLF’s contributor page.