Back to Nature: 'Whole Wheat' Crackers

CSPI joined a federal appeal attempting to reverse a district court decision that would make it easier for the food industry to deceive consumers. 

In September 2023, the Litigation Department joined an appeal of a class action lawsuit against Back to Nature Foods Company, LLC, which alleged that the company made misleading claims about the whole grain content of its Stoneground Wheat Crackers. According to the lawsuit, the “Organic Whole Wheat Flour” claim made on the cracker’s front panel misleads consumers to believe that the grain in the product is predominantly, if not entirely, whole grain. In reality, the primary grain in the crackers is refined flour. 

District Court Dismissal Order

On August 8, 2023, the District Court dismissed the lawsuit. The Court ruled that, at best, a reasonable consumer would find the whole wheat claims ambiguous as to whether the flour in the crackers was predominately whole grain and that the consumer could dispel any confusion by reviewing the ingredient list. 

This ruling is a dangerous precedent and undermines a significant Second Circuit decision that the Litigation Department previously achieved (Mantikas v. Kellogg). Rulings such as this allow food companies to make claims on the front of their package that may deceive many consumers, so long as the package contains fine-print information somewhere that consumers could in theory parse to clarify the meaning of the deceptive claim. That would harm consumers, who rarely carefully inspect packages in the few seconds spent purchasing grocery items.

Mantikas v. Kellogg is the seminal Second Circuit decision that protects consumers from these types of misleading claims. In that case, the Litigation Department represented consumers, who alleged that they were misled by the whole grain claims made on Cheez-It crackers. In its decision, the Second Circuit concluded that consumers were likely to be misled by Cheez-It’s whole-grain claims, and, critically, it told the industry that consumers are not required to look beyond prominent, misleading representations on the front of a package to discover the truth from the small print.

Second Circuit Appeal

In September 2023, the plaintiff appealed the District Court’s decision to the Second Circuit. Believing the District Court’s ruling was wrongly decided and harmful to consumers, the Litigation Department joined the Plaintiff’s legal team to assist with the appeal. 

On July 12, 2024, the Second Circuit, reversing the District Court and remanding the case, held in a Summary Order that the “Plaintiff has plausibly alleged that a reasonable consumer would read the words ‘ORGANIC WHOLE WHEAT FLOUR’ on the front of the box and conclude that whole wheat flour is the predominant type of flour in the crackers.” Venticinque v. Back to Nature Foods Co., LLC, 2024 U.S. App. LEXIS 17096, *4 (2d Cir. July 12, 2024). The Second Circuit further held that the front of the package is “not merely ambiguous, but arguably falsely implies that a prominently-mentioned ingredient – one ‘that obviously was the products’ primary ingredient’ predominates.” Id. at *4-5 (quoting Mantikas, 910 F.3d at 638).