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Strawberries are seen for sale on a fruit and vegetable stall at Alsager market, Stoke-on-Trent, Britain, August 7, 2019. REUTERS/Andrew Yates
(Reuters) - Strawberries are packed with health benefits, rich in vitamins and antioxidants that can guard against cancer, hypertension and heart disease.
But (shocker) that doesn’t mean the berries can transform frosted Pop-Tarts into a health food.
Perhaps that’s why a series of putative class actions targeting Kellogg Sales Co for not putting enough strawberries into its toaster pastries strikes me, in some ways, as comical. After all, it’s not as if adding a smidge more berries is likely to magically protect Pop-Tart eaters from serious ailments.
Bummer, I know.
Even Kellogg agrees, arguing in court papers that “reasonable consumers do not buy Frosted Strawberry Pop-Tarts because they believe they are high in antioxidants or Vitamin C.”
(Personally, I suspect they buy them because they’re covered in sugary icing and sprinkles and are delicious when served warm with a glass of milk. But I digress.)
Still, plaintiffs lawyer Spencer Sheehan of Sheehan & Associates in Great Neck, New York, does have a point about the obligation to provide accurate food labeling. “It’s the most basic, simplest, fairest thing to do. Tell people what they’re getting,” he said.
Sheehan told me he’s “not expecting to find a fresh strawberry inside” a Pop-Tart. But he argues that if the product is called “Strawberry Pop-Tart,” then strawberries should be the No. 1 fruit in the filling.
Instead, he alleges in his Oct. 19 complaint that strawberries come in behind cheaper dried pears and apples in the list of ingredients. Among consumer law and breach of warranty claims are allegations of negligence and fraud.
“The product’s common or usual name of ‘Whole Grain Frosted Strawberry Toaster Pastries,’ is false, deceptive, and misleading, because it contains mostly non-strawberry fruit ingredients,” he wrote in the complaint filed in Manhattan federal court.
Moreover, he wrote, the pastries are “unable to confer any of the health-related benefits of strawberries because the amount of strawberries is insufficient to provide the benefits of this fruit.”
A Kellogg’s spokesperson in an email said, “While we don’t comment on pending litigation, we can tell you the ingredients in and labeling of all of our Pop-Tart products fully comply with all legal requirements.”
This is not Sheehan's first Pop-Tart complaint against Kellogg. In 2020, he targeted the non-whole grain version of the strawberry toaster tarts with similar allegations.
Represented by Jenner & Block’s Dean Panos, Kellogg in that case hit back with a motion to dismiss that's currently pending before U.S. District Judge Andrew Carter.
Panos argues that “the labeling does not state, or even imply, that the product contains a specific amount of strawberries” and that strawberries are in fact the predominant fruit ingredient.
As for the health claims, Panos, who did not respond to a request for comment, continued, “No reasonable consumer equates a Pop-Tart to a bushel of strawberries.”
Gotta agree with him there.
The suits are the latest in a long line of fruit-flavored litigation.
In 2007, for example, Kellogg dodged a class action in Los Angeles federal court by a man who thought the company’s Froot Loops cereal contained real fruit. Or “froot.”
The allegation that “the cereal pieces themselves resemble fruit is not rational, let alone reasonable,” wrote now-retired U.S. District Judge Audrey Collins in tossing the suit. “The cereal pieces are brightly colored rings which in no way resemble any currently known fruit.”
A year later, a woman sued Quaker Oats parent Pepsico, alleging that Cap'n Crunch with Crunchberries cereal was deceptive because it didn’t contain real berries.
Ah yes, who doesn’t recall halcyon summer days picking crunchberries for jam or Thanksgiving turkey with crunchberry sauce?
Right.
“This court is not aware of, nor has plaintiff alleged the existence of, any actual fruit referred to as a ‘crunchberry,’” wrote now-Senior U.S. District Morrison England of the Eastern District of California, who dismissed with the suit with prejudice.
But other cases have been tougher calls. For example, U.S. District Judge Stephen Wilson in Los Angeles refused to dismiss a false labeling case against Krispy Kreme Doughnuts in 2017 for claiming some of its pastries contained real fruit or maple syrup.
“It is plausible that plaintiff will be able to show that reasonable consumers believe that 'Raspberry-Filled' doughnuts are filled with raspberries, 'Maple Iced Glazed' and 'Maple Bar' doughnuts contain maple syrup or maple sugar, and 'Glazed Blueberry Cake' doughnuts contain actual blueberries,” the judge wrote.
Soon after, the plaintiffs voluntarily withdrew their complaint, indicating a settlement.
Plaintiffs lawyers from Faruqi & Faruqi did not respond to a request for comment.
Krispy Kreme counsel from Morrison & Foerster declined to comment on the case specifically, but associate Lena Gankin told me that “courts have held that reasonable consumers don’t expect that a product that has a given flavor equates to having that specific ingredient. Accurate and lawful product labels are important to consumers, but these cases are more about headlines than genuine consumer protection.”
To be sure, the Pop-Tart case has received extensive publicity, because who (including me) doesn’t want to write about Pop-Tarts?
Whether consumers are actually upset about the proportion of strawberries in the filling is another question. But the litigation is a reminder for companies to be careful about how they describe their products.
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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.
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