Mantikas ex rel. Situated v. Kellogg Co.Mantikas ex rel. Situated v. Kellogg Co.
Plаintiffs Kristen Mantikas, Kristin Burns, and Linda Castle ("Plaintiffs") appeal from a judgment entered on August 21, 2017 in the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, J. ), granting Defendant Kellogg Company's motion to dismiss Plaintiffs' complaint for failure to state a claim, as provided in
We conclude that the district court erred in dismissing Plaintiffs' complaint. Reviewed under the proper standards for a
BACKGROUND
The Complaint alleges as follows. Defendant produces Cheez-It crackers and sells the brand in a variety of flavors, including "original" and "whole grain." During the relevant timе period, Defendant packaged and sold the "whole grain" variety in two boxes, each with slightly different labeling. One version contained the words "WHOLE GRAIN" in large print in the center of the front panel of the box, and " MADE WITH 5G OF WHOLE GRAIN PER SERVING " in small print on the bottom. The other version contained the words " MADE WITH WHOLE GRAIN" in large print in the center of the box, with " MADE WITH 8G OF WHOLE GRAIN PER SERVING " in small print on the bottom. Both versions also contained a "Nutrition Facts" panel on the side of the box, which revealed in much smaller print that a serving size of the snack was 29 grams and that the first ingredient on the ingredients list was "enriched white flour." "Whole wheat flour"
Plaintiffs purchased one or both versions of the Cheez-Its labeled "WHOLE GRAIN," believing on the basis of that label that the grain content was predominаntly whole grain. Contrary to their belief, however, the grain content was not predominantly whole grain, but rather enriched white flour. Plaintiffs assert that they would not have purchased the crackers had they known that the grain content was not predominantly whole grain. Plaintiffs filed the Complaint in the United States District Court for the Eastern District of New York, asserting claims for false advertising and deceptive business practices in violation of New York and California consumer protection laws,
Defendant moved to dismiss the Complaint pursuant to
The district court granted Defendant's motion. It held, first, that both the " MADE WITH WHOLE GRAIN" and "WHOLE GRAIN" labels would not mislead a reasonable consumer, because both statements
DISCUSSION
We review de novo the grant of a motion to dismiss pursuant to
To state a claim for false advertising or deceptive business practices under New York or California law, a plaintiff must plausibly allege that the deceptive conduct was "likely to mislead a reasonable consumer acting reasonably under the circumstances." Fink ,
The district court held that Plaintiffs failed to state a claim for relief because, in the context of the entire Cheez-Its packaging, a reasonable consumer would not be misled by the whole grain representations. The court relied on the fact that although the Cheez-Its boxes were conspicuously labeled "WHOLE GRAIN" and " MADE WITH WHOLE GRAIN," the boxes accurately displayed, on the front panel, the precise number of grams of whole grain per serving (" MADE WITH 5G [ OR 8G ] OF WHOLE GRAIN PER SERVING "). The court reasoned that because the crackers in fact contained whole grain, and because the front of each box clarified exactly how much whole grain was in the product, a reasonable consumer was not likely to believe that the crackers were made of predominantly whole grain. Mantikas v. Kellogg , No. 16-cv-2552,
Although the district court is correct that an allegedly misleading statement must be viewed "in light of its context on the product label or advertisement as a whole," id. at 3 (quoting
Defendant contends that a reasonable consumer still would not be deceived by the "WHOLE GRAIN" claims, because the side panel of the packaging disclоses further detail about the product's ingredients. Specifically, the Nutrition Facts panel reveals that a serving size of Cheez-Its is 29 grams and the list of ingredients names "enriched white flour" as the first (and thus predominant) ingredient. Neither of these disclosures cures the deceptive quality of the "WHOLE GRAIN" claims as alleged by Plaintiffs. First, the spеcification that 29 grams is the total weight of a serving does not adequately dispel the inference communicated by the front of the package that the grain in "whole grain" crackers is predominantly whole grain because it does not tell what part of the 29-gram total weight is grain of any kind. Such serving size information сlarifies the amount of whole grain as a proportion of a total serving, but it does not indicate the ratio of whole grain to white flour.
Moreover, we cannot conclude that these disclosures on the side of the box render Plaintiffs' allegations of deception implausible. "[R]easonable consumers should [not] be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box." Williams v. Gerber Prods. Co. ,
Defendant points us to several district court decisions, each dismissing a case on the pleadings, in which consumers alleged that food product labels asserting that the food was "made with" various ingredients misled them to believe that the stated ingredient was the dominant, or at least a major, ingredient. Those cases differ materially from ours because of the form of deception alleged. In most of those cases, plaintiffs claimed that a product label was deceptive because it led consumers to believe, incorrectly, the product contained a significant quantity of a particular ingredient. See, e.g., Chuang v. Dr. Pepper Snapple Grp., Inc. , No. CV 17-01875,
In addition, in most of the cases Defendant cites, plaintiffs alleged they were misled about the quantity of an ingredient that obviously was not the products' primary ingredient. For examрle, in Red v. Kraft Foods, Inc. , plaintiffs claimed they were misled by the label "made with real vegetables" to believe that the crackers contained a larger amount of vegetables than they in fact did. No. CV 10-1028,
In our case of Cheez-Its crackers, in contrast, reasonable consumers are likely to understand that crackers are typically made predominantly of grain. They look to the bold assertions on the packaging to discern what type of grain. The representation that a cracker is "madе with whole grain" would thus plausibly lead a reasonable consumer to conclude that the grain ingredient was entirely, or at least predominately, whole grain. That same consumer, confronted with the claim that a cracker is "made with real vegetables," likely would not likely conclude that the cracker was mаde predominantly of vegetables.
Moreover, the rule that Defendant contends emerges from these district court decisions-that, as a matter of law, it is not misleading to state that a product is made with a specified ingredient if that ingredient is in fact present-would validate highly deceptive advertising and labeling. Such a rule would permit Defendant to lead consumers to believe its Cheez-Its were made of whole grain so long as the crackers contained an iota of whole grain, along with 99.999% white flour. Such a rule would validate highly deceptive marketing.
We conclude that Plaintiffs, as required to survive a
CONCLUSION
The judgment of the district court in favor of Defendant is VACATED, and the сase is REMANDED for further proceedings.
Notes
In particular, Plaintiffs asserted claims for "deceptive acts or business practices in the conduct of any business" in violation of
Because the distriсt court's holding that Plaintiffs were not entitled to injunctive relief was premised entirely on its conclusion that Plaintiffs had failed to state a claim that the packaging was deceptive, we vacate that holding. Mantikas ,