I've posted frequently about what seems to be the never-ending litany of false advertising lawsuits against food and beverage manufacturers. One of the latest, and most creative, was recently filed in the Southern District of New York alleging that four varieties of Cheerios (Honey Nut, Frosted, Oat's n' Honey, and regular) contain levels of the pesticide chlormequat exceeding a standard proffered by a non-profit public health group. The plaintiff wants to represent a nationwide class and a New York subclass of consumers seeking monetary damages and other relief against General Mills. 

Like so many of the other false advertising suits in the food and beverage space, the apparent foundation for this lawsuit is public health and safety. Because plaintiff and the members of the putative class have allegedly been exposed to a potentially harmful chemical in a food product, they are supposedly at a greater risk for suffering any number of health impacts. Here, delayed puberty, reduced fertility, and/or impaired fetal development, which the public health group says is associated with low dose chlormequat exposure. Their claims for relief and damages, however, are not for redress due to health impacts – because plaintiffs cannot prove they have suffered any. Instead, they assert violations of New York's General Business Law, breach of implied warranty of merchantability, and unjust enrichment, and seek restitution, attorney fees, compensatory, statutory, and punitive damages, and also want an order requiring General Mills to undertake a corrective advertising campaign.

What makes this case so novel (to me at least) is that the health and safety standard upon which General Mills' conduct is being measured in the Complaint is not from a governmental agency or a well-recognized, reputable scientific group. Instead, it is from a non-profit whose safety standards have been criticized by industry experts as being “exaggerated,” “alarmist,” “scaremongering,” and “misleading.” Indeed, this is the same group that famously promoted the notion that there was a link between mercury preservatives in vaccines and autism, which was ultimately determined by the scientific community to be unfounded.

It will be interesting to follow the arc of this lawsuit. I fully expect General Mills will file a motion to dismiss attacking, at least in part, the appropriateness of using the non-profit's exposure standard to measure its potential liability. The plaintiff's response, and the Court's ultimate decision, could impact false advertising cases in the food and beverage space in the future.