Judge tells area breakfast eaters who sued over what sweetens their cereal: You get nuttin' honey

For the second time in two months, a federal judge has dismissed a lawsuit by two Boston-area women who claimed they were not just put out but deserving of damages because honey is not the main sweetener in Honey Bunches of Oats cereal.

In a suit filed in US District Court in Boston last October, Anita Lima of Medford and Susan Wrublewski of Framingham alleged that they never would have bought Honey Bunches of Oats products if they'd known that they were flavored primarily with various types of substances labeled directly as "sugar," rather than with honey, which they believed was healthier than sugar.

Although the ingredients list on the side of Honey Bunches of Oats packages makes this clear, the two said they didn't look at that because they were convinced by what they said was deceptive TV advertising by the cereal's maker, Post Consumers Products, and by the cereal's packaging, which shows a honey dipper surrounded by sun rays in a honey color and a bee. The two were seeking damages for not only themselves but for Honey Bunches of Oats eaters across the country.

In August, Judge Allison Burroughs dismissed the suit, in a decision that hinges on the fact that the federal Food, Drug and Cosmetic Act, which governs food marketing, refers to "primary recognizable flavors" and that even if honey is not the main sweetener in Honey Bunches of Oats, it is one of its primary recognizable flavors and so is acceptable for promotion in ads and packaging.

Plaintiffs seemingly understand that honey is both a sweetener and a flavoring agent, yet they do not explain why they concluded that the word honey and the associated imagery necessarily meant that honey was the primary sweetener, rather than
referring to the flavor of the cereal. ...

Plaintiffs also assert, however, that some varieties of Honey Bunches of Oats have other ingredients with more distinctive flavor characteristics than honey, such as almonds, that are present in greater quantities, therefore presumably contributing more to the cereal’s flavor profile than honey. ... But that stops short of claiming that honey is not among Honey Bunches of Oats’ primary recognizable flavors.

But, Burroughs continued, even if she were willing to accept the plaintiffs' argument, Post nowhere claims in its advertising and marketing just how much of the cereal's sweetness comes from honey, but that the ingredients list makes it clear honey is not the primary sweetener, and the company can hardly be blamed for the two not looking at that before deciding to buy Honey Bunches of Oats.

Even a reasonable consumer who presumed honey to be a sweetener rather than a flavor would see that Honey Bunches of Oats did not claim to be sweetened exclusively or primarily with honey and therefore would have recognized that the cereal might be sweetened with some honey, but also with other sweeteners. Assuming such a consumer cared about how the cereal was sweetened, he or she would then have checked the ingredient list and discovered that honey, although a sweetener, was not the most prominent.

Lima and Wrublewski's lawyers, based in Framingham and New York City, asked Burroughs to reconsider and to let the case go to a jury.

But in a decision today, Burroughs said their case was still too soggy to go any furher. Although the question of whether the two plaintiffs felt misled by the packaging is, in fact, a question for a jury, Burroughs wrote that they had failed to prove in their complaint that the packaging had "the capacity to mislead," that she stood by her ruling that the relevant federal law relates to "primary recognizable flavors" and that the law defines "misleading" in part as products that claim to have an ingredient they do not, which was not the case here.

She compared their case to one involving packaged "hazelnut creme" coffee that did not actually contain any hazelnuts.

Because honey is a characterizing flavor and the cereal actually includes honey as an ingredient, it was permissible for Post to use the images of honey and bees. If the cereal did not contain honey, then Post would be required to include sufficient cautionary language explaining that it was naturally or artificially flavored. Because the cereal does contain honey, however, the burden is on Plaintiffs to plead why Post’s packaging and marketing would lead a consumer to believe that the cereal was not only honey flavored and contained honey, but also that honey was the primary sweetener.

Complaint (611k PDF).
Original ruling (1.1M PDF).
Ruling on request to reconsider (60k PDF).