By Ben Popken -
NBC News
The Kellogg Company is facing a multi-million dollar lawsuit alleging that its
Whole Grain Frosted Strawberry Pop-Tarts
mislead consumers by failing to warn them that strawberries are not the only ingredient in their
frosting.
filling.
"Strawberries are the characteristic ingredient of the product, since their quantity has a material relationship with the price and the acceptance of the consumer and buyers expect them to be present in a greater proportion than other fruits," the lawsuit raises.
"The common or customary name of the product, 'Whole Strawberry Pop-Tarts with Frosting', is false, misleading and misleading,
as it mainly contains ingredients from other fruits than strawberries", specifically, cheaper apples and pears, according to the indictment, in violation of state and federal consumer protection laws.
Strawberry Pop-Tarts also contain other fruits such as pears and apples in their ingredients.Plateresca / Getty Images / iStockphoto
The plaintiff, Elizabeth Russett of New York, claims that she would not have bought the Strawberry Pop-Tarts, or would only have been willing to pay less than she spent, if she had known the truth.
A similar indictment was filed in Illinois in August.
Spencer Sheehan, a Long Island, New York-based attorney, represents both women.
“A reasonable consumer knows this is a quarter-inch-thick cupcake.
We know it has a filling in the cake, ”Sheehan said.
"From that fruit filling, they should be able to expect it to be mainly strawberry," he added.
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The
Whole Grain Pop-Tarts Frosted Blueberry
Kellogg's also made with other fruits like apples and grapes in
addition to blueberries, its namesake ingredient.
That's acceptable because those labels are marked 'Natural and Artificial Flavor,' Sheehan said.
According to him, the company could add a similar disclaimer to its strawberry Pop-Tarts,
marking on the label 'fruit mix' or including the percentage of each
, for example.
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“Consumers deserve to know that when they see something labeled 'strawberry,' it contains primarily strawberry,” Sheehan insisted.
"The words must have some meaning," he
added.
The food manufacturer told NBC News, Telemundo's sister network, that it does not comment on pending litigation.
According to the Food and Drug Administration (FDA) regulations,
products must not be labeled falsely or misleadingly
.
But some legal experts representing food and beverage companies in advertising and regulatory litigation don't think Strawberry Pop-Tarts are mislabeled.
"The allegations presented in these cases seem so weak to me that the courts dealing with them
could dismiss them as implausible,
" said Adam Fox, partner at the Squire Patton Boggs law firm.
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“The notion that any plaintiff was motivated to buy the products by their belief that they contained more strawberries than they actually have is likely to collide with the reality that
many, many consumers like the products because of the trusted brand. with which they are associated
or even simply by the flavor or the texture of the same ”, he pointed out.
Ivan Wasserman, managing partner of Amin Talati, which represents consumer products, agreed.
"In a class action lawsuit, you have to show a common belief about how much fruit you have," he explained.
"That is going to be a difficult road to travel," he said.
The courts
have thrown out mislabel cases when they found it clear that no reasonable consumer would be mistaken
.
In 2009, Quaker Oats was sued because
Crunchberries
did not contain berries.
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"This court is not aware of, nor has the plaintiff alleged the existence of any actual fruit referred to as
crunchberry,
" the judge wrote in his dismissal.
"As far as this court knows, there is no such fruit that grows in the wild or occurs naturally anywhere in the world," he alleged.
For some attorneys, the cases represent a niche market.
"Many are settled," Wasserman said, for values ranging from "a payment for the inconvenience to a large amount," depending on the volume of sales and the nature of the violations.
For a company, “it is very expensive to litigate the cases.
The plaintiffs' attorneys understand that, ”he said.
The class action mechanism
can serve as a small corrective to the market
.
In 2012, Nutella agreed to stop running ads promoting its chocolate spread as 'healthy'
, settling a class action lawsuit filed by a California mother for $ 3 million.
Several food manufacturers who claimed their products were '100% natural' when they contained high fructose corn syrup (HFCS) changed their ads following class action lawsuits in the 2010s. Legal questions led the FDA to clarify that a product made with HFCS, in which corn syrup comes into contact with synthetic enzymes, cannot be labeled 'natural'.
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Sheehan maintains that those examples are in the minority.
He assures that he does not intend to overthrow any Goliath and that what he does cannot be compared with the power of the laws and their application.
Although he has filed more than 100 indictments against companies that he alleges falsely advertise their products as 'vanilla', he says he loves to identify the everyday injustices consumers face and stand up for them.
Unlike many of his colleagues, he says that instead of just sending complaint letters, he is 'proud' to file lawsuits because of the 'structure' they provide.
"I enjoy it. I've always hated the little things that you can never get compensated for
.
Maybe they don't give you your money back in a store.
You may be charged for mobile phone expenses on your bill: What difference does it make, it's only 25 cents?
All those little things that we experience every day and that we accept without thinking accumulate over time, ”Sheehan argued.
