A federal judge has ruled that General Mills (GIS) must face a lawsuit claiming it tricked consumers by marketing Cheerios Protein as a high-protein alternative to regular Cheerios, when the main difference was that it contained 17 times more sugar per serving.
In a decision on Wednesday, U.S. District Judge Thelton Henderson in San Francisco said consumers may pursue a claim that General Mills violated the federal Nutrition Labeling and Education Act since it “misbranded” Cheerios Protein, which is sold in Oats & Honey and Cinnamon Almond flavors.
Though “skeptical” it would succeed, Henderson also refused to dismiss the plaintiffs’ claim that reasonable consumers would likely be deceived by packaging for the cereal, noting that text mentioning its sugar content and being “sweetened” appeared in small print on the boxes.
Mike Siemienas, a General Mills spokesman, said the Minneapolis-based company does not discuss pending litigation.
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Though Cheerios Protein has 7 grams of protein per serving versus 3 grams for regular Cheerios, the plaintiffs said the real difference was negligible because the serving size of Cheerios Protein, and the calorie content per serving, was twice as big.
The plaintiffs also called the Cheerios Protein name misleading because it said nothing about the 16 or 17 grams of sugar in a serving, versus a single gram in regular Cheerios.
A Washington-based nonprofit group, the Center for Science in the Public Interest, filed the lawsuit last November on behalf of consumers in California and New York.
“We know that consumers are deceived to their detriment by this product,” CSPI litigation director Maia Kats said in an email, “and look forward to the opportunity now to prove so in court.”
The case is Coe et al v. General Mills Inc, U.S. District Court, Northern District of California, No. 15-05112.
