March 2024 was a historic month: Beyoncé released her album Cowboy Carter, a paraplegic patient played online chess using a nano-chip implant, and Edna Ransom purchased a box of saltines. You may not remember the last one, but Nabisco does – – because it led to a class action complaint five months later.
See, Edna saw the pack of premium saltine crackers, made “with 5g of whole grain,” and assumed that meant whole grain was “the products’ main flour ingredient.” Sadly, she was wrong. Unbleached enriched flour is #1, and whole grain wheat flour is #2. At least 100 other people thought the same thing and were named in the putative class. Their ask? Only a cool $5 million.
This one is tricky. Could Edna have read the list of 12 ingredients if whole grain was so important? Yes. Does “with whole grain” mean “only with whole grain?” No, not necessarily. Could someone reasonably assume that though? Sure, maybe.
As a seasoned food lawyer and skeptical consumer, I know that the “with” in front of “whole grain” is the work of a smart marketer. It’s not wrong. But where do we draw the line?
I wouldn’t think about it too hard – – Edna, Mondelēz International, and the U.S. District Court in the Southern District of New York will have an answer for us soon.