Lawsuit is Toast

A few weeks ago, I wrote about a class action lawsuit against Burger King for misleading customers about the actual size of their sandwiches. Apparently, consumer dissatisfaction with the marketing of food is a growing trend.

In fact, the number of lawsuits against food and beverage companies has gone up more than 1,000% since 2008. A huge factor is Spencer Sheehan, an attorney from New York. Sheehan has filed more than 400 lawsuits targeting companies that he says are misleading consumers with advertising and packaging that aren’t accurate.

“I guess I’ve always been the type who would become annoyed [and] never liked it when companies cheated people for small amounts it would be difficult to recoup,” Sheehan told NPR last October.

One such lawsuit is against Kellogg’s, the breakfast food juggernaut. In the case, filed in federal court in New York in September of 2020, Sheehan represents Kelvin Brown, who claims Kellogg’s misrepresented the amount of fruit in their Strawberry Pop-Tarts.

According to the suit, the toaster pastry’s box is “misleading because the label gives consumers the impression the fruit filling only contains strawberries as its fruit ingredient.” In addition to strawberries, the Pop-Tart filling also contains pears and apples.

Sheehan filed a virtually identical lawsuit in federal court in Chicago on behalf of Stacy Chiappetta. In addition to asserting that the pastries don’t contain enough strawberries, Chiappetta accused Kellogg’s of defrauded shoppers by using red food dye that she said makes the filling “brighter and more appealing” on store shelves.

Last August, Anita Harris also filed a class action lawsuit against Kellogg’s in federal court in the Southern District of Illinois, seeking $5 million in damages. She also alleged the company’s marketing of Strawberry Pop-Tarts is “misleading because they give people the impression the fruit filling contains a greater relative and absolute amount of strawberries than it does.”

In addition, Harris cited the health benefits of strawberries, which “protect your heart, increase HDL (good) cholesterol, lower your blood pressure and guard against cancer.” Because of the relatively low content of the berries in Pop-Tarts, however, Harris argues customers are robbed of these benefits.

The lawsuit further claims that Kellogg’s violated the Illinois Consumer Fraud and Deceptive Business Practices Act, stating the company’s “false and deceptive representations and omissions” are likely to influence consumer purchasing decisions. Harris added that, “Reasonable consumers must and do rely on a company to honestly identify and describe the components, attributes, and features of the Product.”

This spring, all three lawsuits were dismissed. U.S. District Judge Andrew Carter, who presided over Brown’s case, held that Brown failed to provide enough evidence to prove that the Pop-Tarts box is misleading. “No reasonable consumer would see the entire product label, reading the words ‘Frosted Strawberry Pop-Tarts’ next to a picture of a toaster pastry coated in frosting, and reasonably expect that fresh strawberries would be the sole ingredient in the Product,” Carter wrote.

U.S. District Judge Marvin Aspen held in Chiappetta’s case that she had not identified any “untruths on the packaging” or a “plausible deception” on Kellogg’s behalf. “The front of the Product packaging does not state or suggest anything about the amount of strawberries in the Product’s filling or guarantee that the filling contains only strawberries, and Chiappetta concedes that the filling contains some strawberries,” he noted.

Similarly, the judge in Harris’ case ruled that Kellogg’s strawberry representations “are simply not deceptive.”

Hopefully Sheehan doesn’t sue Kellogg’s for Froot Loops failing to contain actual fruit.



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McCarty Law LLP

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