- Last month a class-action lawsuit was filed alleging that Wheat Thins are deceptively labeled as "100% Whole Grain" when they in fact contain corn starch, an ingredient Plaintiffs characterize as a refined grain ingredient
- Plaintiffs make the case that a whole grain must include the germ, brand, and endosperm, and that the inclusion of cornstarch is misleading because cornstarch is derived from the endosperm only and is therefore not a whole grain. Further, Plaintiffs argue that the common sense meaning of 100% whole grain is that all of the grain ingredients are whole grains, and that this position is consistent with FDA's guidance, which "recommend[s] that products labeled with '100 percent whole grain' not contain grain ingredients other than those the agency considers whole grain.'"
- However, although Plaintiffs make a noncontroversial argument that cornstarch is not a wholegrain, they nowhere justify that cornstarch should be considered a grain, rather than a starch product derived from a grain. Furthermore, the product images that Plaintiffs include in the complaint indicate that many of the product are labeled with a quantitative statement regarding the whole grain content per serving, i.e., "21g Whole Grain per 31g Serving." Such a statement would likely put a consumer on alert that the product contains ingredients other than whole grains. See Blog post on Warren v. Whole Foods in which the Court found it implausible that a reasonable consumer would construe the claim "100% Whole Grain -18g or more per serving" to mean that the entire product is made from whole grains.
- The Court will now have to determine whether it is plausible that a reasonable consumer would be misled by the "100% Whole Grain" label in the context in which it was presented. We will continue to monitor and report on this case.
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