in Newswire Published on October 20, 2021

Class Action: Whole Grain Strawberry Pop-Tarts Label Should Disclose ‘Non-Strawberry Fruit Ingredients’ [UPDATE]

Last Updated on September 23, 2022

Russett v. Kellogg Sales Company

Filed: October 19, 2021 ◆§ 7:21-cv-08572

Frosted strawberry Pop-Tarts are at the center of another class action, with a new case alleging the whole grain variety is made with fewer strawberries than buyers are led to expect.

Defendant(s)

Kellogg Sales Company

Law(s)

Magnuson-Moss Warranty Act New York General Business Law

State(s)

New York

Case Update

September 23, 2022 – Strawberry Pop-Tart Lawsuit Dismissed

The claims detailed on this page were dismissed after a federal judge found that the Strawberry Pop-Tarts’ packaging would not mislead a reasonable consumer.

U.S. District Judge Nelson S. Roman noted in a July 15 order that “[a]lmost identical claims” in two other federal cases were recently dismissed based on the courts’ findings that a reasonable consumer would not view the strawberry-themed representations on the Pop-Tart packaging’s front label and conclude that the product contained a certain amount of strawberries.

Judge Roman found that the “same reasoning” applies in the instant case.

“No reasonable consumer would see the entire product label, reading the words ‘Pop-Tarts Whole Grain Frosted Strawberry’ alongside a frosted strawberry pop-tart with sprinkles, and reasonably expect that fresh strawberries would be the sole ingredient in the Product,” the judge wrote.

Judge Roman also challenged the plaintiff’s suggestion that Kellogg’s use of vegetable juice and paprika extract color falsely implies that the Pop-Tarts contain more strawberries than they do. According to the judge, a reasonable consumer would not assume what a product’s ingredients are based on its colors.

Judge Roman granted Kellogg’s motion to dismiss the lawsuit and denied the plaintiff’s request for leave to amend the suit.

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Frosted strawberry Pop-Tarts are at the center of another proposed class action, with a new case alleging the whole grain variety is also made with fewer strawberries than consumers are led to expect.

The 19-page suit alleges defendant Kellogg Sales Company has run afoul of state and federal law by failing to disclose on the label for Whole Grain Frosted Strawberry Pop-Tarts that the product is made with “mostly non-strawberry fruit ingredients,” namely dried pears and dried apples with vegetable juice for color.

The case stresses that even the name of the strawberry Pop-Tarts, not to mention other representations on Kellogg’s packaging, is misleading given no mention is made, outside of the fine-print ingredients list, that the product is made with pears and apples.

“The Product’s name is misleading because strawberries are its characterizing ingredient, yet the labeling fails to disclose the Product merely attempts to taste like strawberries, provided Defendant can in good faith claim that this taste characterizes the Product, i.e., ‘Natural Strawberry Flavored Whole Grain Frosted Toaster Pastries,’” the complaint claims.

According to the lawsuit, whether the fruit content of a toaster pastry is made mostly with strawberries or with only some strawberries, and contains other, less-valued fruit ingredients, is “basic front label information consumers rely on” when making purchasing decisions. The case argues that strawberries are the whole grain frosted Pop-Tarts’ characterizing ingredient given their amount has a material bearing on price and “consumer acceptance,” not to mention that consumers expect strawberries to be present in an amount greater than other fruits.

Noting that the order in which ingredients are listed on the rear panel of a product is based on weight, the lawsuit relays that there is less strawberry in the Pop-Tarts than other fruits given its position behind “vegetable juice for color, dried pears, [and] dried apples” within the product’s ingredients list:

The suit additionally argues that the amount of strawberry ingredients in the product is insufficient not merely to provide the nutrient benefits of strawberries but also for taste purposes. As for the color of the Pop-Tarts’ filling, the case claims Kellogg relies on vegetable juices and paprika extract color “[t]o give consumers the false impression that the Product contains more strawberries than it does.”

“This causes the mainly pear and apple filling to look red, like it would if it contained more strawberries, even though it contains a de minimis or negligible amount of strawberries,” the suit reads.

Overall, Kellogg has gained an advantage against both competitors and consumers by mislabeling the whole grain frosted strawberry Pop-Tarts, and the product’s value was “materially less than its value as represented” by the company, the lawsuit alleges.

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