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Did General Mills Deliberately Ignore Complaints About Problems with Gluten-Free Cheerios?

Consumers seek to reinstate suit against General Mills for Gluten Free Cheerios recall.


Photo: CC--Mike Mozart

Celiac.com 04/24/2017 - The fallout continues from General Mills' recall of nearly 2 million boxes of Gluten Free Cheerios and Honey Nut Cheerios in 2015, which occurred after workers at a California plant accidentally loaded gluten-free oat flour into trucks that had been holding wheat flour, which contains gluten, and which then contaminated batches of "gluten-free" cereal produced with the grain from those trucks.

In comments to the U.S. Ninth Circuit court, plaintiffs representing a proposed class of consumers claimed that a lower court had erred in dismissing their lawsuit on the grounds that the company's recall program made the claims baseless. They asked that the court allow their lawsuit against General Mills to continue. The suit is based on claims that the supposedly gluten-free Cheerios that had been made with the wrong flour, and that the cereal had sickened consumers.

Lead plaintiff Christopher Hamilton told the panel that a refund program alone does not moot a claim for damages, as courts have held that, while refund programs do moot restitution claims, they do not moot claims for damages and injunctive relief, such as Hamilton's. "Indeed, in a case based on the exact facts present here, a court in California held that the Cheerios recall program did not moot a consumer's damages claim because the defendants did not satisfy the plaintiff's claims for statutory damages and injunctive relief," said Hamilton.

Hamilton, who has celiac disease, brought his suit in March 2016 after buying the supposedly "gluten-free," wheat-contaminated Cheerios. One sample revealed 43 parts per million of gluten, more than twice the legal ceiling for the "gluten-free" label, Hamilton said in his complaint.

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Still, to the layperson, Hamilton's request for damages and injunctive relief invites questions. First, since the company issued a full product recall, what type of injunctive relief would they be seeking? Second, regarding damages, exactly what type of monetary damages would be claimed? Did these plaintiffs incur medical expenses, missed work or other costs? That is not made clear in these filings.

When U.S. District Judge Michael McShane dismissed the original suit in July, he did so based on the fact that General Mills did issue a full product recall. In his statements on the matter, the judge wrote: "Rather than mitigate his damages by accepting General Mills' recall/refund offer, Hamilton is suing General Mills for false labeling, marketing and promotion of the product. Hamilton paints a discreet [sic] manufacturing mishap as a grand scheme of deceptive advertising, marketing and labeling." Judge McShane added, "I find this to be creative at best."

But Hamilton says that he should be permitted to amend his complaint to include claims that the recall was delayed, and that the company was aware of complaints from sick consumers as early as July 2015. Hamilton also wishes to include allegations that General Mills deliberately ignored warnings from a dietitian that General Mills gluten-free testing was inferior.

The case is Christopher Hamilton v. General Mills Inc. et al., case number 16-36004, in the U.S. Court of Appeals for the Ninth Circuit.

Read more at Law360.com.

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7 Responses:

 
Susan
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
25 Apr 2017 5:10:02 AM PDT
If General Mills tested every batch of final product BEFORE sending it to stores, these boxes would not have made it into the hands of consumers. This is clearly a total failure in their process. Yet, they continue to ignore the very real danger to consumers by continuing to use this flawed testing process. If General Mills was honest about wanting to produce a gluten free product, they would have made changes so such a situation can never happen again. They have been secretive from the start.

 
admin
( Author)
said this on
25 Apr 2017 11:57:42 AM PDT
No company tests every box or package of everything they label "gluten-free," not even gluten-free certification organizations would require this, as the associated costs would make the price of the product astronomical.

 
K2
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
01 May 2017 9:32:11 AM PDT
True, no company tests every box but they should test every batch - especially if they have a new production line and/or a shared facility. This case is critical because if the courts don't take it seriously, other manufacturers will know there are no consequences to claiming "Gluten Free" erroneously in the future. When I've contacted other food companies in the past over various issues, they track by batches and they take action, they follow up. Now that I know General Mills doesn't take my health seriously, I can take my own actions by not buying their products. I certainly wouldn't give Cheerios to children with known gluten issues, given that GM treats it so casually. At a very bare minimum, simple training of their staff about what is required for gluten free manufacturing would have avoided the entire event. But again, they apparently don't take it seriously.

 
Jefferson Adams
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated ( Author)
said this on
03 May 2017 2:14:28 PM PDT
With all of the people supposedly having gluten reactions to General Mills products, not one person has provided the batch info that is printed on every box of Cheerios. To date, no one we know of has confirmed reporting such information to the FDA, or to General Mills. This information would easily enable such cases to be verified or debunked. It's also possible that adverse reactions may be due to oat sensitivity, which affects about 8% of celiac sufferers. Until clear evidence is presented to the contrary, claims that General Mills knowingly disregards the health of people with celiac disease and gluten intolerance seem unsupported by the facts. Plenty of people with celiac disease have reported tolerating Cheerios just fine, though our own position is for individuals to exercise their own judgement in matters of their own health and diet.

 
Laura
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
02 May 2017 3:26:10 AM PDT
The "Gluten Dude" was one participate invited to visit the manufacturing plant back when GF cheerios was first developed by the company. *see https://glutendude.com/gluten/are-gluten-free-cheerios-safe-for-celiacs/

 
Harold
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
08 May 2017 11:04:42 AM PDT
Whether or not GM knew or takes steps to remedy their processing of GF grains, I'm not sure why anyone with celiac or gluten sensitivity would indulge in mass produced food products. After having been sick most of my life (thank you antibiotics), I've learned that even if everything checks out ok, there's always the chance that someone, somewhere, either believes gluten-free is psychosomatic or wants to do people harm, and will take steps to make it so. The more processed the food, the more hands that touch it, the higher the chance that something goes awry. If you're willing, or strong enough, to take that risk, more power to you, but I am not.

 
Jeff Adams
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated ( Author)
said this on
27 May 2017 1:55:39 PM PDT
Thanks for your comment. Yes, eating minimally processed, whole foods is likely a smart nutritional practice. However, I would remind you that many of the gluten-free products that celiacs know, trust, and consume regularly would be considered "mass produced," so I´m not sure that mass production necessarily means more gluten-contamination.




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