The Kellogg Co. won a round in its battle to hold a packaging company liable for cereal box liners that gave off an odor that triggered complaints that the apparent chemical smell made consumers sick.
U.S. District Judge Paul Maloney of the Western District of Michigan denied FPC Flexible Packaging Corp.’s motion for summary judgment, ruling on Aug. 15 that Kellogg’s dictate of the type of wax to be used in the allegedly tainted liners did not absolve FPC of breach of warranty claims.
In a separate ruling in FPC v. The International Group Inc., the judge also denied a motion by FPC and The International Group Inc., the company selected by Kellogg to make the wax used in the liners, to toss the claims against them on the ground the cereal company lost or destroyed the only two samples it had from boxes it obtained from consumers who complained about a chemical odor.
The odor and sickness complaints began in June 2010 from consumers who purchased boxes of Corn Pops, Froot Loops, Apple Jacks and Honey Smacks cereals. Shortly after the complaints surfaced, Kellogg reported them to the U.S. Food and Drug Administration, which ordered a recall of nearly 1.6 million boxes of cereal and determined tainted wax liners were to blame. Kellogg said its analysis pinpointed elevated levels of aromatic hydrocarbons in the wax used as the likely cause.
In all, consumers lodged close to 1,100 complaints, most reporting gastrointestinal symptoms of nausea and diarrhea. Kellogg said the recall cost it $50 million.
Kellogg sued the two companies in 2011, alleging breach of express and implied warranties. While it specified the precise makeup of the wax to be used in the liners, Kellogg contends that the wax used was defective.
The defendants countered that the wax and liners met Kellogg’s specifications and that Kellogg set no standards for the appropriate level of hydrocarbons. FPC also contends that only a relative handful of extremely sensitive consumers were affected, and that no purchaser can hold a supplier responsible for all adverse reactions to the product.
In denying FPC’s request for summary judgment, the judge said sufficient questions of fact exist for a jury to decide.
Counsel for Kellogg are attorneys with the law firms of Jenner & Block and Miller, Johnson, Snell & Cummiskey. FPC’s counsel are with Strobl & Sharp. Counsel for The International Group are with Collins Einhorn Farrell & Ulanoff.
Lisa Hoffman is a contributor to law.com.