Kellogg is being hit with a multimillion-dollar lawsuit alleging its "Whole Grain Frosted Strawberry" Pop-Tarts are deceiving consumers, failing to warn them that strawberries are not its only fruit filling ingredient.
“Strawberries are the Product’s characterizing ingredient, since their amount has a material bearing on price and consumer acceptance, and consumers expect they are present in an amount greater than other fruits,” the suit asserted. “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,” namely, cheaper pears and apples, the suit said, a violation of state and federal consumer protection statutes.
The plaintiff, Elizabeth Russett of New York, claimed she would have not bought the strawberry Pop-Tarts — or would have only been willing to pay less than what she did — had she known the truth.
A similar suit was filed in August in Illinois. Spencer Sheehan, an attorney based on New York's Long Island, is representing both women.
“A reasonable consumer knows that this is a toaster pastry a quarter-inch thick. We know we’re dealing with filling going into a pastry,” Sheehan said. “Of that fruit filling, they should be able to expect that it’s mainly strawberry.”
Kellogg’s “Whole Grain Frosted Blueberry Pop-Tarts” are also made with other fruits besides its namesake ingredient, in this case apples and grapes. That’s acceptable because those front labels are marked “Naturally and Artificially Flavored,” Sheehan said. He said Kellogg could add a similar disclaimer to its strawberry Pop-Tarts, such as marking it as “mixed fruit” on the label or by including the percentage of each fruit.
“Consumers deserve to know that when they see something labeled as ‘strawberry,’ it mainly contains strawberry,” Sheehan said. “Words have to have some meaning.”
Food-maker Kellogg told NBC News it does not comment on pending litigation.
Under Food and Drug Administration regulations, products must not be labeled in a false or misleading way. But some legal experts who represent food and beverage companies in advertising and regulatory litigation don’t think the strawberry Pop-Tarts are mislabeled.
“The claims asserted in these cases strike me as so weak that the courts confronting them may dismiss them as implausible,” said Adam Fox, a partner at Squire Patton Boggs.
“The notion that any plaintiff was moved to buy the products because of their belief that the products contained more strawberries than they actually do is likely to run into the reality that many, many consumers like the products because of the trusted brand with which they are associated or even just the taste or texture of the product,” he said.
Ivan Wasserman, a managing partner at Amin Talati Wasserman, who represents consumer products, agreed.
“In a class action you would have to show a common belief of how much fruit it has,” he said. “That’s going to be a difficult row to hoe.”
Courts have tossed out mislabeling cases where they found it was clear no reasonable consumer would be confused.
In 2009, Quaker Oats was sued for Crunch Berries not containing any berries.
“This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a 'crunchberry,’” the judge wrote in his dismissal. “So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.”
For some attorneys, the cases represent a niche market.
“Many are settled,” Wasserman said, for values ranging from “a nuisance value to a large amount,” depending on the volume of sales and nature of violations. For a company, “it’s very expensive to litigate cases. Plaintiffs’ attorneys understand that,” he said.
The mechanism of class-action lawsuits can serve as a small market corrective.
In 2012, Nutella agreed to stop running ads claiming its chocolate spread was “healthy,” settling a class-action lawsuit brought by a California mother for $3 million.
Several food-makers who claimed their products were “100 percent natural” when they contain high fructose corn syrup changed their package claims following class-action lawsuits in the 2010s. The legal questions prompted the FDA to clarify that any product made with HFCS where the corn syrup comes in contact with synthetic enzymes cannot be labeled as “natural.”
Sheehan said those examples are the minority. He said he isn’t out to topple any Goliaths and said what he does can’t compare to the power of laws and enforcement.
While he has filed over 100 lawsuits against companies he alleges falsely advertise their products as "vanilla," he said he just delights in identifying everyday consumer injustices and going after them. Unlike many of his peers, he said he “proudly” files lawsuits instead of just issuing demand letters, because of the “structure” they provide.
“I enjoy it. I always hated the small thing you could never get a redress for. Maybe you don't get a refund at a store. Maybe you get cellphone charges crammed on your bill. All those little things that we experience every day and accept without a thought. ‘Oh what's the big deal, it's just a quarter?’” Sheehan said. “It adds up over time.”
