Real Mozzarella and Tomato Sauce? Bagel Bites Labels Deceive Consumers, Class Action Alleges [UPDATE]
Last Updated on May 12, 2022
Huber v. Kraft Heinz Foods Company
Filed: April 25, 2021 ◆§ 3:21-cv-00278
Kraft Heinz Foods Co. faces a class action centered on the Bagel Bites pizza snack and representations on its label that concern the use of certain “real” ingredients in making the product.
Wisconsin
Case Updates
May 12, 2022 – Judge Dismisses Bagel Bites Lawsuit
A federal judge dismissed the case detailed on this page after finding that the plaintiff failed to show that Kraft Heinz’s labeling of its Bagel Bites product would mislead a reasonable consumer.
In a May 6 order granting the defendant’s motion to dismiss the lawsuit, U.S. District Judge William M. Conley agreed with Kraft Heinz’s assertion that the plaintiff, who joined the case in May 2021 as a substitute for the previous plaintiff, had failed to state a claim.
For one thing, the judge found that the company’s representation that its Bagel Bites product contains “mozzarella cheese” conforms with federal food labeling regulations, which specify that mozzarella cheese is a “food prepared from dairy ingredients” that may also include “clotting enzymes” and “salt.” Though the plaintiff took issue with the fact that the cheese is “part-skim mozzarella cheese,” Judge Conley noted that part-skim mozzarella is still mozzarella cheese under federal law, or “at least, plaintiff has failed to plausibly allege that it is not,” the judge wrote.
The order further stated that although the plaintiff claimed the defendant’s “tomato sauce” ingredient is not real tomato sauce as consumers would understand the term, the FDA has not defined any specific formulation requirements for tomato sauce other than a certain percentage for the amount of tomato solids.
Moreover, Judge Conley noted that the plaintiff’s argument that consumers care about the chemical makeup of their tomato sauce “seems incongruous with his other arguments that consumers simply expect the purest and most basic form of every ingredient advertised on the front of a product’s package.”
The judge found that because the plaintiff had failed to demonstrate that a reasonable consumer won’t receive the “mozzarella cheese,” “real cheese” or “tomato sauce” represented on the front label of the Bagel Bites product, he has failed to state a claim for relief and his lawsuit must be dismissed.
Judgment was entered in favor of Kraft Heinz on May 6.
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Kraft Heinz Foods Company faces another proposed class action centered on the popular Bagel Bites pizza snack and representations on its label that concern the use of certain “real” ingredients in making the product.
The 20-page complaint, filed in Wisconsin, claims buyers are deceived by representations on the Bagel Bites label in that the snack does not contain real mozzarella cheese and tomato sauce “as these foods are understood and expected by consumers.” Noted in the case is the importance of the dairy industry to Wisconsin, which the suit says produced over a quarter of all cheese in the U.S.—more than three billion pounds—each year, with mozzarella representing “one-third” of all cheese produced in the state.
According to the lawsuit, Bagel Bites, despite what’s stated on the product’s front label, do not contain mozzarella, an absence the case says is evidenced by the fine print of the snack’s ingredients list. The suit claims Bagel Bites, in truth, contain a “cheese blend” consisting of “part-skim mozzarella cheese” and “modified food starch,” which the lawsuit stresses is not found in proper cheese.
“‘Cheese Blend’ is a deceptive name for this ingredient, because no ‘blend’ of cheese, especially ‘REAL’ mozzarella cheese, contains added starch,” the lawsuit says. “While defendant may claim that this ingredient contains part-skim mozzarella cheese and that food starch is merely added, this disregards that food starch is not a part of any mozzarella cheese or any real cheese.”
The complaint argues that it is “misleading” on the part of defendant Kraft Heinz Foods Company to “add filler ingredients to ‘cheese’ and still call the product cheese.” As the lawsuit tells it, reasonable consumers, in particular those in Wisconsin, want real mozzarella cheese in pizza given the fact that they “value (1) its soft, moist texture, (2) its milky, yet tangy taste and (3) its high protein and relatively low calories and sodium compared to other cheeses.”
Further, the case argues that the defendant’s use of the “real” dairy seal, which is owned by the National Milk Producers Federation (NMPF), on Bagel Bites’ packaging is misleading and enables the company to sell more products at higher prices. According to the lawsuit, the “real” dairy seal that appears on Bagel Bites packages is not the true National Milk Producers Federation seal because the organization’s traditional emblem contains no qualifying text.
The lawsuit says that when a food or dairy ingredient falls short of federal standards of identity, it can use a “modified” version of the real seal, subject to evaluation by the National Milk Producers Federation.
“Defendant’s Product does not qualify for the traditional ‘REAL’ seal because the ‘cheese blend’ contains modified food starch, an extender and filler,” the suit claims, alleging that while the organization’s guidelines might have allowed Kraft Heinz to use one of four modified “real” seals, the defendant “misappropriated” the traditional “real” seal, and added the statement “made with real cheese.”
“The use of the standard ‘REAL’ seal with the statement ‘MADE WITH REAL CHEESE’ is unauthorized by the NMPF because the Product does not contain ‘real cheese,’” the case contends. “No reasonable Wisconsin consumer expects ‘real mozzarella cheese’ to have modified food starch.”
On the claim that Bagel Bites do not contain real tomato sauce, the lawsuit says consumers expect a product purporting to contain real tomato sauce to have “tomatoes in a puree or paste form, and seasonings.” The label representations on Bagel Bites packages are “false, deceptive and misleading,” the suit alleges, in that the product’s “tomato sauce” ingredient contains non-tomato extenders and thickeners such as modified corn starch and methylcellulose.
“The fourth and sixth most predominant ingredients are ‘Modified Corn Starch’ and ‘Methylcellulose,’” the lawsuit reads. “Cornstarch and methylcellulose are common thickening agents for sauces and are added to the Product’s ‘tomato sauce’ to give the impression the sauce contains more tomatoes than it does.”
Bagel Bites buyers have paid more for the product based on the defendant’s label representations than they otherwise would have had the snack been represented in “a non-misleading way,” the case asserts.
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