On May 24, Kellogg Sales Co. defeated a third putative class action alleging that Strawberry Pop-Tarts mislead consumers, having defeated two other putative class actions in March.  Represented by prolific plaintiffs’ firm, Sheehan & Associates, Stacy Chiappetta, Kelvin Brown, and Anita Harris each sued Kellogg after realizing that the filling in Strawberry Pop-Tarts contains not just strawberries, but also small amounts of dried pears, dried apples, and the food dye red 40.  But two federal judges in Illinois and a third in New York have now agreed with Kellogg that the packaging of Strawberry Pop-Tarts is not misleading for the simple reason that the pastries in fact contain strawberries.

In Chiappetta v. Kellogg Sales Co., 2022 WL 602505 (N.D. Ill. Mar. 1, 2022), Plaintiff Stacy Chiappetta alleged that the word “Strawberry” and the depiction of a “half of a fresh strawberry and red fruit filling” on Kellogg’s Unfrosted Strawberry Pop-Tarts gave consumers the false “impression the fruit filling” in the pastries “contains only strawberries.”  Based on that alleged misrepresentation, Ms. Chiappetta sued Kellogg for allegedly violating the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), as well as for negligent misrepresentation, breach of warranty, fraud, and unjust enrichment.

In a March 1 decision, Judge Marvin Aspen concluded that Ms. Chiappetta “ha[d] not identified any ‘untruths on the [pastries’] packaging’.”  According to the court, neither the word “Strawberry” nor the images on the packaging promised consumers that the Pop-Tarts’ filling contained only strawberries and no other fruit.  Plaintiff’s interpretation of the label was thus “unreasonable and unactionable.”  And because everyone agreed the filling contained some strawberries, Ms. Chiappetta could not claim that the packaging deceived her in any way.

On March 31, a judge in the Southern District of New York reached the same conclusion regarding Kellogg’s Frosted Strawberry Pop-Tarts.  See Brown v. Kellogg Sales Co., 2022 WL 992627 (S.D.N.Y. Mar. 31, 2022).  Plaintiff Kelvin Brown sued Kellogg under N.Y. General Business Law §§ 349 and 350 on the same theory advanced in Chiappetta.  But Judge Andrew Carter, Jr. agreed with Kellogg that no reasonable consumer “reading the words ‘Frosted Strawberry Pop-Tarts'” on a “sugary breakfast treat” would expect the pastries’ filling to contain exclusively strawberries or carry “the general health benefits of fresh strawberries.”  In reaching that conclusion, Judge Carter distinguished cases—like Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018)—that involve labels that claim a product is “Made with [Ingredient]” or contains “[Amount] Grams of [Ingredient] Per Serving,” claims the court said might suggest the referenced ingredient is the “predominant” or “sole” ingredient of that type in the product.

Most recently, on May 24, a judge in the Southern District of Illinois tossed a third similar case filed by Sheehan & Associates on behalf of Plaintiff Anita Harris.  See Harris v. Kellogg Sales Co., Case No. 3:21-cv-01040-SPM (S.D. Ill. May 24, 2022).  Harris asserted ICFA and other derivative claims challenging the labeling of Kellogg’s Frosted Strawberry Pop-Tarts.  Judge Stephen P. McGlynn held that “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.”  Judge McGlynn analogized the case to another Sheehan lawsuit that had challenged Pepperidge Farm’s “Golden Butter” crackers as misleading because the crackers contained a “non-de minimis amount of butter substitutes”—namely, vegetable oils. See Floyd v. Pepperidge Farm, Inc., 2022 WL 203071 (S.D. Ill. Jan. 24, 2022). “Injecting some common sense into the matter,” the court “dismissed the plaintiff’s ICFA claims” in Floyd, “reasoning that there were no ‘untruths on the packaging’ or deception because the crackers were golden-colored and contained butter.”  As in that case, in Harris “the Kellogg’s Strawberry Pop-Tarts label is, on its face, not deceptive, nor does it lead to consumer confusion more generally.”  “The front of the pastries’ packaging did not make a claim regarding the amount of strawberry contained in the pastries’ filling,” the court reasoned, “and Harris conceded that the filling does contain some strawberries.”

Chiappetta, Brown, and Harris are the latest mislabeling cases to grapple with a recurring question:  When does referencing an ingredient on a product label create a reasonable expectation that the ingredient is the predominant, or even exclusive, ingredient in the product?  While Judges Aspen, Carter, and McGlynn agreed that “Strawberry” Pop-Tarts make no such promise, expect courts and companies alike to continue struggling with that line-drawing exercise in years and cases to come.