By Creighton Magid, a Partner with Dorsey & Whitney LLP in the firm’s Washington, DC office.

The plaintiffs’ bar continues to view foods and beverages containing added sugar as prime targets for litigation.  The majority of the lawsuits brought to date have been labeling claims, in which plaintiffs assert that they were duped into buying products portrayed on the label as “healthy” but that, in reality, were laden with “unhealthy” amounts of added sugar.  Some lawsuits have gone further, stealing a page from the tobacco litigation playbook and alleging a conspiracy to suppress evidence of the medical risks posed by excessive amounts of sugar and to elevate fat as the larger health risk.  Recent judicial decisions have been a mixed bag for defendants, offering reasons for both optimism and concern.  The recently proposed $20.25 million settlement of excessive-sugar claims targeting various Kellogg cereals and snack bars suggests that sugar litigation will continue to be attractive to the plaintiffs’ bar.

One of the most notable sugar-labeling cases is Krommenhock v. Post Foods, LLC, a putative class action venued in the U.S. District Court for the Northern District of California.  The Krommenhock plaintiffs allege that Post labels a variety of breakfast cereals with health-and-wellness statements that “suggest its cereals are healthy food choices”—statements such as “nutritious,” “good for you,” “rich in nutrients”—but that, in fact, the cereals contain (according to the complaint), large amounts of added sugar.  This sugar, plaintiffs contend, contributes to overall excess sugar consumption and a resulting increase in the risk of chronic disease.  Judge William Orrick largely denied Post’s motions to dismiss on two occasions.  He held that, with the exception of claims expressly permitted by federal law, whether “overconsumption of cereals with excessive added sugar is unhealthy” or “whether [Post’s] health and wellness statements are false or misleading” are “questions that cannot be resolved at motion to dismiss stage, but may be resolved under a more stringent and evidentiary-based review at summary judgment.”  Krommenhock v. Post Foods, LLC, 2018 U.S. Dist. LEXIS 42938, *11 (N.D. Cal. Mar. 15, 2018).  Post has since taken Judge Orrick up on the suggestion and has moved for summary judgment.  The court held a hearing in early October, but it has yet to issue an opinion.