EAST ST. LOUIS – Kellogg doesn’t commit fraud by selling strawberry Pop-Tarts that include apple juice, U.S. District Judge Stephen McGlynn ruled on May 26.
He dismissed a complaint that Anita Harris of Cahokia Heights filed last year for a consumer class in Illinois, Arkansas, and Iowa.
McGlynn found the package label wasn’t deceptive and didn’t lead to confusion.
“The front of the pastries’ packaging did not make a claim regarding the amount of strawberry contained in the pastries’ filling and Harris conceded that the filling does contain some strawberries,” he wrote.
Attorney Spencer Sheehan of Great Neck, New York filed the complaint among 20 label actions he filed in district court from last May to this May.
He claimed Harris bought the product at Wal-Mart in Cahokia Heights.
He claimed strawberries increased good cholesterol, lowered blood pressure, and guarded against cancer.
“One serving of strawberries provides more vitamin C than an orange,” he wrote.
He claimed their antioxidants prevent or reverse cell damage caused by aging and the environment.
“Whether a toaster pastry contains only strawberries or merely some strawberries and a significant amount of other less valued fruit ingredients is basic front label information consumers rely on when making quick decisions at the grocery store.”
He claimed pears and apples overwhelmed the strawberry taste.
He claimed Harris and the proposed class wouldn’t have bought the product or would have paid less for it if they had known the truth.
Kellogg counsel Dean Panos moved to dismiss the complaint in January.
He claimed the label didn’t state or imply that the filling consisted solely of strawberries or suggest that it consisted of a specific amount.
“No reasonable consumer equates strawberry Pop-Tarts with a bushel of fresh strawberries,” he wrote.
He claimed courts across the country held that highlighting an ingredient or flavor didn’t imply exclusion of other ingredients.
Sheehan responded, “Defendant fails to explain why the product cannot have a strawberry flavor and contain more strawberries instead of pears and apples, and these are not mutually exclusive.”
McGlynn found the case substantially similar to one he dismissed in January.
Sheehan’s client in that case claimed Pepperidge Farms committed fraud by selling golden butter crackers that included vegetable oil.
McGlynn recalled that he injected some common sense into that case by reasoning that there were no untruths on the package and there was no deception.
He quoted Seventh Circuit precedent that how real consumers understand and react to advertising matters most.
He further quoted, “Where plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels or other advertising, dismissal on the pleadings may well be justified.
“Harris’s interpretation of the pastries’ label is unreasonable and not grounded in the reality of how the public understands and reacts to product advertising.”
Eleven of Sheehan’s 20 class complaints remain active in district court.
District Judge David Dugan dismissed a claim that Dreyer’s committed fraud by selling rich milk chocolate ice cream that included oil.
Spencer voluntarily dismissed claims against Frito-Lay, Chobani, Kraft Heinz, Inventure Foods, Del Monte, and Kroger.
Two complaints remain against Arizona Beverage and single complaints against Kashi, Conagra, Bimbo Bakeries, Costco, General Mills, Hillshire, Mondelez, Abbott Laboratories, and Star Brands.
Sheehan dismissed Kroger on May 24, a day after he sued.
His client Tina Lee of Wayne County claimed Kroger sold lidocaine patches for eight hours of pain relief but patches didn’t adhere that long.