Jessica M. Karmasek Aug. 21, 2013, 8:30pm

SAN FRANCISCO (Legal Newsline) -- Lawyers for Kellogg Co. Inc. are asking a federal judge to dismiss a proposed class action lawsuit against the company over its Super Mario fruit-flavored snacks.

On Monday, Kellogg filed a notice of motion and motion to dismiss in the U.S. District Court for the Northern District of California.

The company wants Judge William Orrick to toss the suit, which was filed in June.

"The complaint should be dismissed pursuant to Rule 12(b)(6) because Kellogg's packaging on its Super Mario Fruit Flavored Snacks is not deceptive or misleading to a reasonable consumer," wrote Kenneth Lee, an attorney at the Los Angeles law firm Jenner & Block LLP, who is representing Kellogg in the suit.

"Plaintiff agrees that the statement on the packaging at issue here -- that the Super Mario Fruit Flavored Snacks are 'made with real fruit' -- is factually true.

"Alternatively, this complaint should be dismissed pursuant to Rule 12(b)(1) on standing grounds because Plaintiff has not established that she suffered an injury-in-fact."

Plaintiff Alicia Spevak filed the lawsuit because she claims she was misled by the phrase "made with real fruit." She claims she subjectively believed that the snacks contain more fruit than they actually do.

Spevak also alleges that the "made with real fruit" statement duped her into believing that the snacks were a healthy snack when, in fact, they are "an unhealthy sweet snack that is full of sugar and chemicals."

Kellogg, in its 12-page motion to dismiss, argues that the suit should be dismissed because the "made with real fruit" statement is factually true and not likely to deceive a reasonable consumer.

"Under California law, false advertising claims must be dismissed unless it is 'probable that a significant portion of the general consuming public... acting reasonably in the circumstances' would be misled by the packaging," Lee wrote.

"Here, a reasonable consumer reading the phrase 'made with real fruit' would not interpret it to mean anything other than what it says: That fruit is among the ingredients in the snacks.

"The phrase does not indicate how much fruit is in the snacks, nor does it suggest that there are no other ingredients. A reasonable consumer understands that Super Mario Fruit Flavored Snacks are tasty snack foods, not health food."

A hearing has been set for Oct. 16.

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