NY Court Dismisses Suit Alleging Kellogg’s Pop-Tart Label Misled Consumers

A New York federal judge recently dismissed a class-action lawsuit accusing Kelloggs of misleading consumers by exaggerating the amount of strawberries in its Frosted Strawberry Pop-Tarts through materially misleading labeling…

A New York federal judge recently dismissed a class-action lawsuit accusing Kelloggs of misleading consumers by exaggerating the amount of strawberries in its Frosted Strawberry Pop-Tarts through materially misleading labeling. According to US District Judge Andrew Carter, “A reasonable consumer is unlikely to purchase a toaster pastry coated in frosting exclusively for the nutritional value of strawberries in its fruit filling.”

Allegations of Product Mislabeling Against Kellogg

In Brown v Kellogg Sales Co., plaintiff Kelvin Brown, a resident of the Bronx, New York, filed a class-action suit against Kellogg Sales Company, alleging that Kellogg participated in deceptive business practices and/or false advertising by overexaggerating the amount of strawberries in its well-known “Frosted Strawberry Pop-Tarts” breakfast treat through materially misleading labeling. The complaint alleged violations of the New York General Business Law, negligent misrepresentation, breach of implied and express warranty, violation of the Magnuson-Moss Warranty Act, fraud, and unjust enrichment.

As detailed in the suit, the front label on the packaging contains representations, including (1) the words “Frosted Strawberry, ” (2) an image of half of a fresh strawberry, and (3) an image of the Product depicting “a dark red fruit filling.” Plaintiff alleged that these representations are false and misleading because “they give consumers the impression the fruit filling contains more strawberries than it does” and “creates an erroneous impression that strawberries are present in an amount greater than is the case.” The front label includes strawberries but omits pears and apples, “even though these fruits are stated elsewhere on the label – in the small print on the ingredient list,” the complaint alleged.

Brown further asserted that the front label also fails to inform customers of the percentage of strawberries in the Product relative to pears and apples. He also maintained that because apples and pears are not disclosed on the front packaging, the product is unable to provide the taste and health benefits inherent to strawberries and consumers end up paying for the product at a higher price than they would absent the alleged misrepresentations. 

Court Dismisses Suits Against Kellogg

On March 31, 2022, Judge Carter granted Kellogg’s motion to dismiss, concluding that Brown failed to plead that the challenged representations on the front label are materially misleading.

As Judge Carter explained, a claim for false advertising or deceptive business practices under the New York General Business Law must adequately allege that the deceptive act or practice was “likely to mislead a reasonable consumer acting reasonably under the circumstances.” He went on to find that viewing the product label in context, the representations are “simply not deceptive.”

“Courts typically find misleading representations about ingredients when the product label explicitly asserts that it is made with a specific ingredient or specifies the quantity of an ingredient when the ingredient is not predominant in the Product,” Judge Carter wrote. “The front packaging does not contain any content that would suggest to a reasonable consumer that strawberries are the sole ingredient in the Product.”

Judge Carter further noted that the photo of the fresh half strawberry must be viewed in context. “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,” he wrote. “In fact, strawberries are a common food flavor, whether artificial or otherwise, especially in processed snack foods like Pop-Tarts,” he added.

A federal court judge in Chicago recently dismissed a similar suit, Chiappetta v. Kellogg Sales Co., involving Unfrosted Strawberry Pop-Tarts. The plaintiff in that suit alleged that the packaging was deceptive because it showed half of a strawberry and red fruit filling, which misled consumers in believing the product contains only strawberries, when it also contains dried pears, dried apples and artificial food dye.

The court rejected the allegations and dismissed the suit. Judge Marvin E. Aspen wrote “[t]he 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. Accordingly, [the plaintiff’s] interpretation of the label is unreasonable and unactionable.”

Key Takeaway

As the latest suits against Kelloggs demonstrate, class action lawsuits involving product labels are on the rise. To help defeat such claims, food and beverage manufacturers should ensure that the nutrition facts panel and ingredient lists are accurate. While this may not always insulate companies from false advertising claims, it can provide key evidence when arguing that the overall product packaging is not misleading to reasonable consumers.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Pat McNamara, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.