Food For Thought: Lawyers Take On Food Manufacturers Over Mislabeling

My wife loves to eat Nutella. She’s constantly on a diet, but every Saturday night she takes half a low-calorie English muffin, toasts it, and smears it with the chocolate-hazelnut spread. A constant dieter, she indulges in this once-a-week treat with a rapture reminiscent of a shipwreck survivor who hasn’t eaten a decent meal in weeks. But Debbi knows all too well that she can’t eat this product every day and still maintain her 112-pound weight. Just two tablespoons of Nutella have 200 calories, 100 of which are fat calories. And the list of ingredients includes sugar and palm oil as its first two ingredients – and these are certainly not the healthiest choices for anyone. Interestingly, the jar of Nutella claims that a nutritious breakfast is made of up a glass of OJ, and Nutella smeared on whole-wheat bread. Debbi would be the first to tell you that if you start eating this every day for breakfast, you’ll wind up in Fat City — despite your goals to be on the road to Sveltesville.

The legal system has also agreed that Nutella isn’t that healthy. Having it marketed increasingly as a balanced breakfast for American children has gotten its manufacturer, Italy’s Ferrero Group (which also makes Ferrero Chocolates and Tic Tacs), into trouble with US courts.

Advertised as a way to get children to eat a healthy breakfast, Ferrero insinuated that Nutella was healthy when, in fact, it has about as much nutritional value as a candy bar. Or so claimed several consumers – mothers — who sued the company’s US unit. As part of its settlement of two class-action suits, Ferrero U.S.A. Inc. has reimbursed consumers for up to five jars (at $4 a jar). In addition, Ferrero agreed to modify the Nutella label, modify certain marketing statements about Nutella, create new television ads, and change the Nutella website.

This lawsuit against Nutella is the latest in a batch of litigation that argues that food companies are violating specific rules about their ingredients and labels. Today, more than 25 lawyers who took on the tobacco companies – and won – have filed cases against huge food-industry manufacturing giants who include ConAgra Foods, PepsiCo, Heinz, General Foods and Chobani. Filed over the last few months, these new lawsuits claim that food manufacturers are misleading the public and violating federal regulations. How? By wrongly labeling their food products and their ingredients. For instance, they are aggressively asking a federal court in California to stop ConAgra’s sales of Pam cooking spray, Swiss Miss cocoa products and some of Hunt’s canned tomatoes. Pam cooking spray – in just one example – allegedly contains as an ingredient a propellant, which is really nothing more than petroleum gas, butane and propane. In another case, a lawsuit has been brought against Greek yogurt maker Chobani, as it asserts that its listing of “evaporated cane juice” on its labels should more rightfully be labeled “sugar.”

Of course – and there’s no surprise here – the food companies believe that these lawsuits are without merit and frivolous. They claim that it is merely litigation gone out of control, driven only by the lawyers’ financial motivations.

If these lawsuits against food manufacturers prove to be successful, the financial damages could be enormous. The plaintiffs’ lawyers are seeking to base the damages on sales of the products. Chobani, for example, is expected to have revenues of $1.5 Billion – that’s billion – this year alone, 2012. Many of these lawsuits have been filed in California, where consumer protection laws can favor plaintiffs.

As a Boston, Massachusetts product liability lawyer, I have said repeatedly that consumers have the right to know that the food products they purchase and eat are labeled correctly and are not misleading. In Massachusetts, the manufacturers of food products are legally obligated to ensure that their products, when used in the intended manner by consumers, are not harmful. If you feel that you or someone you care about has been harmed due to the mislabeling of a food product, you should contact an experienced product liability attorney.

I’ll monitor this category of cases as it moves forward and keep you posted.

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