In a Feb 24 order on the case,* Judge William H. Orrick gave preliminary approval to an agreement reached by the parties in January, and is set to provide class members (who bought selected Post cereals in the US between 2012 and 2020), with damages and injunctive relief.

Under the agreement, Post will remove from labels, if it hasn’t already done so, terms including ‘Less Processed,’ ‘No High Fructose Corn Syrup,’ ‘Natural,’ ‘Healthy,’ ‘Smart,’ ‘Nutritious,’ ​and ‘Wholesome’ ​on products in which more than 10% of the calories come from added sugar.

It has also agreed to establish a $15m non-reversionary (see box below) settlement fund, with unclaimed funds to be divided equally among the American Heart Association, the National Advertising Division of the Better Business Bureau, and the UCLA Resnick Center.

Judge: Statements may be factual, but could be misleading in context of label

In the original complaint vs Post – originally filed in 2016 – plaintiffs accused the firm of presenting cereals such as Great Grains, Raisin Bran, and Bran Flakes as healthy, wholesome and nutritious when they were in fact high in sugar, excessive amounts of which, the plaintiffs claimed, have been linked to everything from heart disease to type 2 diabetes.

Some of the cereals contained up to 16g sugar per 59g serving (such that 27% of the energy came from sugar), noted the plaintiffs, who argued that Post “leverages a policy and practice of marketing high-sugar cereals with health and wellness claims.”

Post, in turn, argued that the challenged label statements (‘Less processed nutrition that you can see,’ ‘No High Fructose Corn Syrup,’ ‘Natural,’ ‘Healthy,’ ‘Smart,’ ‘Nutritious,’ ​and ‘Wholesome’) ​were truthful, protected by FDA regulations, and/or nonactionable puffery.

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