Kraft Foods and subsidiary Nabisco moved to dismiss a putative consumer class action alleging that its Wheat Thins crackers were falsely advertised as containing 100% whole grains. According to the complaint, the plaintiff supposedly thought that Wheat Thins literally contained no other ingredient than “whole grains” because the snack’s packing features a “100% whole grain” statement. This theory “does not pass the straight face test,” Kraft said in its motion. “Common sense dictates that processed crackers are not made with only a stalk of whole grain and that they are made with the help of processing agents, baking aids, and seasonings.”
Kraft argued that its whole grain statements were not deceptive because no reasonable consumer could plausibly believe that “those snacks could be plucked in raw form from a field.” The motion cited other consumer fraud suits that federal circuit courts have dismissed because allegations were “idiosyncratic” or “def[ied] common sense”: a suit against SunnyD alleging that that images of fruit on the package suggested that the beverages contained real fruit juice, a suit against Dreyer’s alleging that the label descriptors “original” or “classic” suggested that the ice cream products did not contain partially hydrogenated oil, an ingredient not in the company’s supposedly healthier original ice cream recipe in 1928.
Kraft also argued that any state law claims should be superseded by FDA labeling standards, which allow companies to make the “100% whole grain claim” where all the grain ingredients in the product are whole grains – even if the product contains other ingredients.
Finally, Kraft argued that the plaintiff failed to show that the company intended to dupe its customers by mislabeling its products since all the ingredients were accurately listed on the label.
The motion is set to be heard by U.S. District Judge Gary Klausner (Central District of California) on July 23.