The following excerpt is from Mantikas ex rel. Situated v. Kellogg Co., 910 F.3d 633 (2nd Cir. 2018):
Belfiore v. Proctor & Gamble Co. , 311 F.R.D. 29, 53 (E.D.N.Y. 2015) ), the court misapplied that principle to Plaintiffs claims in this case. Plaintiffs core allegation is that the statements "WHOLE GRAIN" and " MADE WITH WHOLE GRAIN" are misleading because they communicate to the reasonable consumer that the grain in the product is predominantly, if not entirely, whole grain. Contrary to the reasonable expectations communicated by the large, bold-faced claims of "WHOLE GRAIN," however, the grain in the product is predominantly enriched white flour. While the disclosures on the front of the box relied on by the district court (" MADE WITH 5G [ OR 8G ] OF WHOLE GRAIN PER SERVING ") do set forth accurately the amount of whole grain in the crackers per serving, they are nonetheless misleading because they falsely imply that the grain content is entirely or at least predominantly whole grain, whereas in fact, the grain component consisting of enriched white flour substantially exceeds the whole grain portion.
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