PORTLAND, Ore. (Legal Newsline) – Class action lawyers argue a federal magistrate judge got it wrong when he suggested their lawsuit over jelly at Kroger be thrown out.
Judge John Acosta, in his finding and recommendations, said reasonable consumers wouldn’t believe a brand of jelly called “Just Fruit” would contain only fruit and no added sugars. Lawyers at Piucci Law, Milstein Jackson and Casey Law Firm are blindsided to find out the product contains fruit syrup and other sweeteners.
In response to Acosta’s F&R, on Oct. 14 in Portland, Ore., federal court, they filed their objections in hopes presiding Judge Marco Hernandez will listen to them instead.
The objections say the complaint plausibly alleges a reasonable consumer would be misled by the name of the jelly line and that Acosta mischaracterized the plaintiff’s allegations.
“Notably, while the F&R initially (and correctly) summarized Plaintiff’s claims as ‘based on the presence of added sugars and altered fruit ingredients in the Product[,]’ it now seemingly recharacterized Plaintiff’s claims—from claiming the Product was not ‘just fruit’—to claiming the Product was not ‘just fruit products.’ This happens numerous times in the F&R,” the objections say.
“This, of course, is not the basis of Plaintiff’s allegations. Further, while utilizing the dictionary to posit a reasonable consumer’s understanding of ‘spread,’ it did not do so for fruit, but rather assumed ipse dixit that “fruit” and “fruit products” were interchangeable.
“The F&R also turns on another overarching (and flawed) characterization of Plaintiff’s claims; namely, that they rely solely on whether the ‘just fruit’ claim is objectively true. But… Plaintiff further alleged that, in the alternative, the Product label would mislead a reasonable consumer into believing the Product was free from additives and sugar beyond those occurring naturally in fruit.”
Acosta says the lawyers are not giving reasonable consumers enough credit, especially considering the ingredients, which are all derived from fruit, are listed right on the label.
“The FDA makes clear fruit syrups contain added sugar which can derive from processed fruits or fruit juices and that such sugars, whether from fruits or other sources, must be listed as an added sugar on a product’s nutrition label,” Acosta wrote.
“Consequently, the added sugars in the fruit syrup found in the Product are just as likely to be from processed fruit as other sugar sources.
“Even assuming (plaintiff Sarah) Vitort’s assertion that fruit syrup consists mostly of added sugar is true, the added sugar could be fruit based and Vitort does not allege otherwise.”