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Seventh Circuit Dismisses State Law Claim for Chewy Bar Fraud

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By Robyn Hagan Cain on October 20, 2011 4:01 PM

We enjoy Judge Richard Posner’s opinions for the Seventh Circuit Court of Appeals because no one escapes his ire. This week, in Turek v. General Mills, Judge Posner criticized the district court judge for his lack of understanding of federal jurisdiction and class action complaints, and the plaintiff for bringing frivolous, unintelligible claims.

Ultimately, the plaintiff committed the greater sin in the court’s eyes, and the Seventh Circuit Court of Appeals affirmed dismissal.

On to the case.

Kellogg's Fiber Plus chewy bars (chewy bars) claim to contain "35% of your daily fiber." Plaintiff Carolyn Turek complained that Kellogg should have disclosed that the fiber in the chewy bars was a non-natural fiber, called inulin, derived from chicory root.

Turek alleged that inulin provides fewer of the benefits of consuming fiber, causes stomach problems in some people, and is harmful to women who are pregnant or breast feeding. While the packaging indicates that chewy bars contain "chicory root extract" and "inulin from chicory root," it does not state that the product contains a form of fiber that is inferior to "natural" fiber.

This "oversight" could be attributed to the fact that Kellogg vigorously contests the inferiority of chicory root inulin. The Seventh Circuit Court of Appeals, for the sake of an appeal, treated the allegation as true.

Even if inulin-derived fiber is inferior, the Seventh Circuit found that its inferiority is irrelevant. The disclaimers that Turek wanted to add to chewy bars are not identical to the labeling requirements imposed on such products by federal law, and so they are barred under the Federal Food, Drug, and Cosmetic Act.

Although it is merely "icing on the cake," Judge Posner added that the Turek's suit also fails to state a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, the principal law under which she stated her claim, because that law does not apply to "actions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States."

The dietary fiber representations on the chewy bar packaging are specifically authorized by the federal statutes and regulations.

If you have a health-conscious client who wants to challenge dietary representations on food packaging in Illinois, you have to challenge the packaging under a federal law, not a state law claim.

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