Second Circuit Vacates Misleading Cracker Box Label Dismissal

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Second Circuit Remands ‘Whole Wheat Flour’ Cracker Label Lawsuit

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Tuesday, July 16, 2024

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The Second Circuit vacated a New York federal court dismissal of a complaint regarding a misleading cracker box label. According to the Second Circuit, the district court erred in dismissing Venticinque v. Back to Nature Foods Company, LLC because the plaintiff “has pleaded sufficient factual allegations to state a plausible claim” under the New York General Business Law.
The proposed class action was initially filed in November 2022, alleging that consumers were “duped into purchasing” Back to Nature Food Co.’s organic stoneground wheat crackers. Advertising of the crackers emphasized organic whole wheat flour, although the primary ingredient in the crackers is unbleached enriched white flour. According to the plaintiff, she paid a premium for the product compared to a similar cracker that did not advertise organic whole wheat flour.
The Second Circuit relied on Mantikas v. Kellogg, a similar dispute over a box of Cheez-It crackers that were advertised as “made with whole grain” even though the primary ingredient was “enriched white flour.” According to that decision, a reasonable consumer could plausibly understand a label with “large, bold-faced claims of ‘WHOLE GRAIN’” to mean that whole grain is the predominant ingredient because consumers likely understand that crackers are typically made with grain, whereas a claim of “made with real vegetables” on a cracker box would not likely lead the same consumer to believe the cracker is made predominantly of vegetables. Context is crucial in determining whether advertising may be misleading, according to the court.
Because the Back to Nature cracker package implies that whole grain is the primary ingredient in a similar way to the package in Mantikas, the court determined that the allegations were sufficient to state a claim and remanded to the district court for further proceedings.