“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 lawsuit said. “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.”
The plaintiff, Elizabeth Russett of New York, alleged that she would not have purchased the strawberry Pop-Tarts, or would not have paid the same amount, had she known the truth about the Kellogg product.
Attorney Spencer Sheehan, who is representing Russett, said, “Consumers deserve to know that when they see something labelled as ‘strawberry,’ it mainly contains strawberry […] Words have to have some meaning.”
Under the Food and Drug Administration regulations, products must not be labelled in a way that is false or misleading. However, other legal experts who represent food and drink companies in advertising and regulatory litigation do not believe Kellogg has mislabelled its strawberry Pop-Tarts. Adam Fox, partner at Squire Patton Boggs, said, “The claims asserted in these cases strike me as so weak that the courts confronting them may dismiss them as implausible.”