In a complaint* filed in the eastern district of California on October 30 by plaintiffs Keri van Lengen and Deborah Nava against General Mills and Roxanne Ornelas (manufacturing manager at Gen Mill’s Lodi plant), General Mills is accused of selling misbranded products (cereals advertised as gluten-free which in fact contained gluten).

It adds: “Plaintiffs and Class Members have all suffered and will continue to suffer harm and damages as a result of Defendants’ unlawful and wrongful conduct.”​

'An isolated incident involving purely human error'​

The lawsuit was filed just under a month after General Mills announced plans to voluntarily recall 1.8m boxes of gluten-free Cheerios and Honey Nut Cheerios produced at its Lodi plant in California in July (click HERE​​ for details).

In a blog post​​ published on October 5, Jim Murphy, senior vice president and president of the Cereal division at General Mills, said he was ”embarrassed and truly sorry”​ about an “isolated incident involving purely human error”,​ which led to the recall.

He explained: “Our Lodi production facility lost rail service for a time and our gluten-free oat flour was being off-loaded from rail cars to trucks for delivery to our facility on the dates in question. In an isolated incident involving purely human error, wheat flour was inadvertently introduced into our gluten-free oat flour system at Lodi. That error resulted in an undeclared allergen – wheat – being present in products labeled as gluten free at levels above the FDA gluten-free standard.”​

He also reassured consumers that the company’s oat supply was “not the issue​”, stressing: “We tested our oat supply on these dates – and the oat supply tested as gluten free. We also tested the specific oat flour being used at Lodi – and our oat flour supply also tested as gluten free on the dates in question.”​

He added: “We are testing all finished products. We’ve also instituted additional flour handling protocols at all facilities to ensure this will not happen again.”​

Attorney: Acknowledging wrong doing does not free a corporation from liability for damages​

Asked whether the fact that General Mills had behaved quickly and responsibly as soon as it became aware of the contamination would have any bearing on the case, Bruce Silverglade, principal at law firm Olsson Frank Weeda Terman Matz PC, told FoodNavigator-USA: "Even if a company promptly conducts a recall, it is likely to be the target of food safety lawsuits if the plaintiffs can prove damages."​

As for why the plaintiffs had named a specific individual (Rozanne Ornelas) in the lawsuit as well as General Mills Inc.; he said: "The naming of an individual as a defendant in a lawsuit against a major corporation is a litigation tactic, the relevance of which will become more known as the case proceeds.​

"If the plaintiffs can prove their allegations, General Mills will still be liable for damages under state law, even though it promptly recalled the product. Acknowledging wrong doing does not free a corporation from liability for damages."​

It will be hard for plaintiffs to get the case certified as a class action​

Rebecca Cross, a San Francisco-based attorney at law firm BraunHagey & Borden LLP, added: "It is common for a company to be sued following a recall of this size – even where the issue was inadvertent and it acts promptly to correct. It is unusual, however, for a manufacturing manager to be individually named. ​

"It will be hard for plaintiffs to get the case certified as a class action. General Mills has already offered refunds to affected consumers, resolving any claims for damages, and any claim for injunctive relief would be moot because the labeling issue has been resolved."​

General Mills said it does not comment on pending litigation.

*The case is: Keri van Lengen and Deborah Nava et al v General Mills Inc, General Mills Sales Inc, General Mills Operations LLC, Rozanne Ornelas and DOES 1-50. No. 2:15-cv-02262-MCE-KJN