ROBERT SIEGEL, HOST:
If your family has been depending on Frosted Mini Wheats as part of a nutritious breakfast, you may now be eligible for some compensation. The Kellog Company has agreed to a $4 million settlement in a class action suit over advertising for Frosted Mini Wheats. In 2008 and 2009, Kellog ran ads claiming the cereal for breakfast improved either the attentiveness or the memory of children.
Under the settlement, if you bought the cereal, you may be eligible for $5 a box, only up to three boxes, though, $15. Kellog, which has not admitted that its claims on behalf of Frosted Mini Wheats are false, has agreed to refrain from making them for a while. For the time being, it will be limited to saying something like - clinical studies have shown that kids who eat a filling breakfast, like Frosted Mini Wheats, have 11 percent better attentiveness in school than kids who skip breakfast.
Kellogg told us we long ago adjusted our communication to incorporate the Federal Trade Commission's guidance.
Well, joining us now to talk about this case is the class action lawyer who represented the plaintiffs, Tim Blood of San Diego. Welcome.
TIM BLOOD: Thank you, Robert.
SIEGEL: Who actually sued in this case? Who brought the suit?
BLOOD: A couple of parents, one from Ohio and one from California; this sort of got in their craw and they were angry about it and wanted to do something about it, which is pretty common with false advertising cases. People decide that they're upset about being misled or being lied to and they decide they want to do something about it.
SIEGEL: Kellogg agreed to set up a $4 million fund. And the complaint against class action lawyers, like you, is always this: The person who thought he was treating his kids' ADHD with Frosted Mini-Wheats gets $15 tops; you get a million bucks or something. It doesn't sound fair at some level.
BLOOD: Yeah, and I understand the criticism. But the concept behind class actions is that you take a bunch of individual small claims and you aggregate them. And that has the effect of leveling the playing field, so that collectively all of the consumers can band together against wealthy corporations who engage in wrongdoing.
SIEGEL: For you, Frosted Mini Wheats is only one in a series of health related class action suits you've been involved with. You've also been involved in a suit against claims made by shoes.
BLOOD: Yes, Skechers and Reebok.
SIEGEL: Skechers and Reebok, their claim was?
BLOOD: They could tone you, make you have a firmer behind and make you fit just by simply walking around in them.
SIEGEL: There is an old principle of buyer beware here somewhere. And something sounds wrong, that if you just want a pair of these shoes you'll be fit. Does the law come to the rescue of advertisers who make claims that are just obviously a kind of overstatement?
BLOOD: No. If they're obvious overstatements it's called puffery and puffery is not actionable. You can't sue over puffery. So, you know, the restaurant down the street that says: World's Greatest Hamburger, it may or may not be the world's greatest hamburger but you can't sue over that. What the law requires is that a reasonable consumer would be actually deceived by the advertisements.
SIEGEL: Do you think, or would it be a false claim on behalf of a class-action lawyer, that winning an action like this one against Kellogg - which after all doesn't admit under the terms of the settlement that there was something untrue about its claim that children are more attentive or their memory is better in school if they have this food - does is actually deter a company like Kellogg from making another dubious claim?
BLOOD: I think it does. I think it deters companies that are fundamentally responsible companies. And I think Kellogg is a fundamentally responsible company. If they get caught - and they receive all the publicity that they're receiving because of the settlement - then I think they absolutely think twice before doing it again.
SIEGEL: If they're so responsible, where do they come up with the claims about cognitive improvements to begin with? How does this happen?
BLOOD: Well, you know, generally speaking what ends up happening is there's always a tension between the marketing departments and the legal departments, or the science departments in companies. The marketers want to say all kinds of things and it's up to other aspects of the company to restrain the marketing people. And sometimes the marketing people win those battles over what should or shouldn't be said.
SIEGEL: I went looking for an ad online for Frosted Mini Wheats. And I found this one. It doesn't make an elaborate claim about what it can do for your child's attentiveness or memory in school. But it does say this...
(SOUNDBITE OF AN AD)
UNIDENTIFIED WOMAN: Kellogg's Frosted Mini Wheats cereal helps keep your kids full and focused all morning long. Keeps them full. Keeps them focused.
SIEGEL: Think it's OK or does it violate the agreement?
BLOOD: I think that's OK. If a child eats breakfast they're going to be more attentive because they won't be thinking about how hungry they are.
SIEGEL: You're saying Kellogg is free to say this is better than no food at all.
BLOOD: Yes, that's what they're allowed to say.
SIEGEL: Mr. Blood, thank you very much for talking with us.
BLOOD: Thank you very much, Robert.
SIEGEL: Tim Blood is a class-action lawyer from San Diego. And he represented plaintiffs in their suit against Kellogg, for claims made on behalf of Kellogg's Frosted Mini Wheats. Transcript provided by NPR, Copyright NPR.