A federal appellate court has sided with consumers in a false advertising suit against several major makers of grated Parmesan cheese, sending the companies back to court nearly five years after a news story sparked a wave of litigation when it revealed people might be sprinkling wood pulp onto their pasta.
A two-judge panel on the U.S. Court of Appeals for the Seventh Circuit, in Chicago, on Dec. 7 reversed the ruling of a district court judge who had dismissed the false advertising claims against Kraft Heinz, Wal-Mart, Jewel-Osco owner Albertsons, SuperValu and manufacturer ICCO-Cheese.
At issue is the labeling of canisters of grated Parmesan cheese that also contain cellulose to prevent caking or potassium sorbate to prevent mold. Some of those canisters advertise “100% Grated Parmesan Cheese” on the front packaging while listing the added ingredients on the back.
Dozens of lawsuits were filed in 2016 alleging that labeling those products as “100% Grated Parmesan Cheese” violated state consumer protection laws, after a Bloomberg story that year revealed that some brands contained upward of 8% cellulose, a food additive made of wood fiber.
The cases were consolidated in Chicago federal court before U.S. District Judge Gary Feinerman. Feinerman dismissed claims that the “100%” labeling was deceptive because reasonable consumers could find the additional ingredients listed on the back. He also said it’s common sense that Parmesan cheese can’t sit unrefrigerated in the middle of the store without added preservatives.
The appellate judges disagreed, saying grocery store shoppers shouldn’t be expected to read the fine print on every item.
“Many reasonable consumers do not instinctively parse every front label or read every back label before placing groceries in their carts,” Judge David Hamilton wrote in the opinion.
Hamilton also said it was reasonable for consumers to believe Parmesan cheese can be shelf-stable, citing U.S. Department of Agriculture guidelines that a block of hard cheese, like Parmesan, can sit unrefrigerated for six months and one month in shredded form.
The case now returns to Feinerman’s court, where the false advertising claims will proceed with regard to the “100%” labeling as well as claims that companies used more cellulose than needed for anti-caking purposes and therefore used it as a filler.
The Seventh Circuit’s ruling is notable because it “reaffirmed what the reasonable consumer standard is” and said what’s most important is what consumers take away from the advertising, said Timothy Blood, an attorney representing the plaintiffs.
The case against Publix and Target remains dismissed because the appeal was filed too late.
