Post’s First Amendment Defense to False Labeling Claims Fails

Post’s First Amendment Defense to False Labeling Claims Fails

Judge William H. Orrick of the U.S. District Court for the Northern District of California rejected Post Foods, LLC's attempt to knock out, on First Amendment grounds, claims in a putative class action that the health and wellness claims made on a variety of Post's cereal boxes were false and misleading because of the amount of sugar contained in the cereals.  Seizing on the Ninth Circuit's opinion in American Beverage Assn. v. City and County of San Francisco, which struck down an ordinance requiring health warnings on soda advertisements, Post argued that its health and wellness claims were protected by the First Amendment because the health effects of sugar remains in dispute.  Judge Orrick found American Beverage Assn. both non-precedential (the Ninth Circuit has voted to rehear the case en banc) and inapposite:  whereas American Beverage Assn. concerned compelled disclosure of "unqualified" health statements, the Post plaintiffs had adequately pleaded adverse health effects of overconsumption of sugar to support their misleading labeling claims.  [3/23/18]

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