Class Action Against Over Mac & Cheese and Phthalates Transferred to N.D. Illinois

On Friday, a putative class action against Kraft over the alleged presence of phthalates in its Kraft Macaroni & Cheese products was transferred from the Northern District of California to the Northern District of Illinois — joining an Illinois suit with similar allegations. Similar cases filed in Massachusetts and New York may similarly be transferred to Illinois.

The suit transferred from California (Clarke v. The Kraft Heinz Co.) was filed in April 2021, alleging that Kraft’s Macaroni & Cheese products have contained ortho-phthalates (more commonly known as “phthalates”), which are synthetic chemicals that are used to make plastics flexible — and “can migrate into food products during processing, packaging, and preparation.” Plaintiffs allege that because phthalates are endocrine disruptors, they can increase the risk of cancers, increase likelihood of asthma, allergies, bronchial obstruction, obesity, brain development, motor delays, and behavioral problems. 

In 2006, the California complaint notes that the European Union “banned the use of certain phthalates in toys that may be placed in the mouth by children younger than 3 years old.”  And in 2008, the U.S. Consumer Product Safety Improvement Act banned certain phthalates from children’s toys and child-care products as of February 2009.

The Clarke plaintiffs allege that “eight of the nine Kraft Macaroni & Cheese products tested” contained phthalates — and powdered-cheese samples contained “average phthalate levels … more than four times higher … than in hard blocks and other natural cheese.” 

The two claims at issue in the California case are breach of implied warranty under California law, as well as fraud.

The California suit was filed just one day before a similar action in the Northern District of Illinois, Stuve v. The Kraft Heinz Co., No. 1:21-cv-01845.  In June 2021, Kraft moved to transfer the California case to the Northern District of Illinois, prompting plaintiffs to amend their complaint to represent a California class only. 

But on September 8, Judge Richard Seeborg granted Kraft’s motion to transfer the case, holding that both “private factors” and “public factors” weighed in favor of transfer, and “[t]he public factors scale is thus tipped most strongly by the possibility of consolidation, which weighs heavily in favor of transfer because the Stuve action is already pending in the Northern District of Illinois.” Those other, similar cases include Francione v. Kraft Heinz Foods Co. (D. Mass.) and Tarantino v. The Kraft Heinz Co. (E.D.N.Y.). The California court also noted that “Kraft asserts it is ‘in the process of seeking to transfer all of these cases’ to the Northern District of Illinois.”

The California court also noted that given the presence of Stuve in Illinois — and the potential that Francione, Tarantino and other similar cases might also be transferred there — could permit “disposition of two, or potentially four, cases revolving around the alleged presence of phthalates in Kraft Macaroni & Cheese [that] will be coordinated in some way.”

The California Plaintiffs in Clarke are represented by Bursor & Fisher, and Kraft is represented by Jenner & Block.