NEW YORK (Legal Newsline) - A law firm that has made a cottage industry out of suing food companies over allegedly misleading labels has failed to make a plausible case that consumers might be fooled into thinking Strawberry Pop-Tarts contain nothing but strawberry filling, Kellogg Co. says in a motion to dismiss the potential class action.
New York attorney Spencer Sheehan of Sheehan & Associates sued Kellogg in New York federal court last September, claiming consumers wouldn’t know from glancing at the label that Strawberry Pop-Tarts contain pears and apples, as disclosed in the ingredients list on the package. He also claimed red dye only increased the confusion, leading consumers to believe Pop-Tarts are healthy snacks containing fresh strawberries.
Kellogg’s lawyers filed a motion to dismiss on April 16, refuting each of Sheehan’s claims. The confusion he says named plaintiff Kelvin Brown suffered “does not pass the straight face test,” Kellogg said, let alone the standard the U.S. Supreme Court laid down in its landmark Ashcroft v. Iqbal decision, which requires plaintiffs to present facts supporting the plausibility of their claims.
“No reasonable consumer equates a Pop-Tart to a bushel of strawberries, and it strains credulity to believe that a consumer would purchase Frosted Strawberry Pop-Tarts because they provide Vitamin C, antioxidants, or other `health-related benefits,’” Kellogg’s lawyers at Jenner & Block said.
Sheehan has filed dozens of similar lawsuits over food labels, although his law firm has encountered rough waters lately in New York federal courts. The firm lost a case claiming a label that said mashed potatoes were “made with real butter” was misleading because they also contained margarine. And another federal court in New York tossed its lawsuit over Honey Maid graham crackers (they contain other sweeteners). In October, a Southern District judge tossed a lawsuit over a non-dairy, vanilla-flavored protein drink.
As for the allegation the red dye misleads consumers, a New York federal court threw out Sheehan’s claims White Reese’s peanut butter cups contain white chocolate, noting “a glance at the ingredient list confirms that the product does not contain chocolate.”
Sheehan attempted to support claims of consumer confusion in a lawsuit against ChapStick maker GSK Consumer Healthcare by citing a survey his own law firm conducted. The judge in the vanilla protein drink case rejected as implausible Sheehan’s survey, GSK said in a filing asking the judge in its case to do the same.
In its motion to dismiss, Kellogg says plaintiff Brown no longer has standing to seek an injunction against the supposedly misleading Pop-Tart labeling.
“Now that he is aware that Frosted Strawberry Pop-Tarts contain fruits other than strawberries, there is no further risk that he will be `deceived,’” the company said.