Week Adjourned: 11.13.15 – Cheerios, GNC, JCPenney

Cheerios ProteinTop Class Action Lawsuits

Cheery-oh-ho-ho-NOT! General Mills—accused of going a heavy on the hot air and light on substance. Cheerios is the subject of a false advertising class action filed alleging that General Mills misleads customers about the amount of protein in its popular cereal Cheerios Protein. Filed in federal court, the lawsuit asserts that a side by side comparison of Original Cheerios and Cheerios Protein shows that Cheerios Protein does not contain as much protein as the original version. Say wha…?

The Cheerios lawsuit asserts that General Mills is marketing Cheerios Protein as a “high protein, healthful alternative to Cheerios” when it does not contain much more protein than Original Cheerios. “Rather than protein, the principal ingredient that distinguishes Cheerios Protein from Cheerios is sugar,” the suit states.

According to the complaint, the Nutrition Facts Panel on the boxes cite a 4 gram difference in protein (7 for Cheerios Protein versus 3 grams for the original), a “smidgen”. However, the lawsuit attributes that to a larger serving size (55 grams as opposed to 27 respectively). The complaint goes on to state that for the same 200 calories, there is only a 0.7 gram difference between Cheerios Protein Oats and Honey (6.7 grams) and Original Cheerios (6 grams).

Further, the lawsuit alleges that Cheerios Protein contains significantly more sugar than Original Cheerios cereal. By way of example, a 1 1/4-cup serving of Cheerios Protein Oats and Honey has 17 grams of sugar, whereas Original Cheerios has 1 gram for a 1 cup serving. Similarly, a 1 1/4 cup serving of the Cinnamon Almond variety has 16 grams, according to the documents.

The Cheerios lawsuit states that the advertising for Cheerios Protein says it’s a “great start to your day” along with pictures of “appealing photographic images depicting healthy and successful kids and parents.” Further, “These claims and images are part of a sophisticated marketing campaign to encourage parents to purchase Cheerios Protein for their children; and the sweet taste of the product helps ensure that children will eat the product,” the lawsuit states.

In a report by ABC News, the agency stated it also found Cheerios Protein Oats and Honey to have more sugar than every other variety of Cheerios on the market: with 10.2 grams for a 3/4 cup serving. Apple Cinnamon Cheerios has the second most with 10 grams and third is Cheerios Protein Cinnamon Almond at 9.6 grams. Frosted Cheerios, Fruity Cheerios and Chocolate Cheerios have 9 grams each, the calculations found.

Heads Up for GNC Supplement Users…there’s more to those supplements than you thought… No stranger to lawsuits, GNC is facing a dangerous drugs class action alleging the company includes dangerous ingredients, such as picamilon, a synthetic neurotransmitter, and amphetamine-like BMPEA in its products. Filed by lead plaintiff, Chris Lynch, the lawsuit asserts that the company knew or should have known the products were actually “spiked” with BMPEA.

Picamilon is a prescription drug legal in some countries, but not the United States. It is used to treat a variety of neurological conditions. BMPEA is a synthetic chemical similar to amphetamine that is banned by the World Anti-Doping Organization, according to the complaint.

“This action arises from defendant’s failure, despite its knowledge (read consumer fraud) that the products are dangerous and not fit for dietary purposes, to disclose and/or warn plaintiff and other consumers,” Lynch states in the lawsuit. “Indeed, defendant has undertaken to conceal vital information concerning the risks of the product.”

The proposed GNC class action cites Oregon attorney general Ellen Rosenblum’s October 22 suit alleging that the company sold dietary supplements that contained picamilon and BMPEA.

“Despite this … notice to GNC that Picamilon is an unlawful ingredient and that products that contain Picamilon are adulterated, GNC continued to sell products that contain Picamilon nationally and in Pennsylvania,” the suit states. “GNC did not cease selling such products until after Oregon’s Attorney General issued a document ‘Notice of Unlawful Trace Practices and Proposed Resolution’ on September 21, 2015.”

Further, Lynch alleges that as early as 2007, GNC was aware that picamilon is a synthetic drug created by Soviet researchers, and not a lawful dietary ingredient, pointing to documents reviewed by GNC’s technical research senior project manager.

Despite widespread knowledge that the Acacia rigidula products were at high risk of having been adulterated with BMPEA, GNC continued to sell these products without testing them to see if they were spiked with BMPEA, or telling consumers about the risk, according to the complaint.

The case is Lynch v. GNC, case number 2:15-cv-01466 in the U.S. District Court for the Western District of Pennsylvania. 

Top Settlements

JCPenney’s Pricing Has Preliminary Settlement… JCPenney has reached a preliminary settlement agreement in a consumer fraud class action lawsuit brought on behalf of California customers who purchased certain JCPenney private or exclusive branded products.

The lawsuit, filed in 2012, arises from the price comparison advertising of private and exclusive branded products JCPenney used in California between November 2010 and January 2012. Plaintiff claims, among other things, that JCPenney’s practices did not comply with California law. JCPenney denies the allegations and is entering into this settlement to eliminate the uncertainties, burden and expense of further protracted litigation.

If approved, according to the terms of the settlement, JCPenney will make available $50 million to settle class members’ claims. Class members will have the option of selecting a cash payment or store credit. The amount of the payment or credit will depend on the total amount purchased by each class member during the class period.

The settlement agreement also states that JCPenney will implement and/or continue certain improvements to its price comparison advertising policies and practices, including periodic monitoring and training programs designed to ensure compliance with California’s advertising laws.

The lawsuit, Cynthia E. Spann v. J.C. Penney Corporation, Inc., is pending in the United States District Court for the Central District of California.

Ok—That’s a wrap folks… Happy Friday…See you at the Bar!