SAN FRANCISCO (Legal Newsline) - A woman who hoped to lead a class action against Kellogg’s over supposedly mislabeled “veggie” meat substitutes lost her case after a judge decided no reasonable consumer would think the term excluded other non-meat ingredients such as grains and oil.
Angela Kennard sued Kellogg last year in federal court in California, claiming MorningStar Farms “VEGGIE” products, including “VEGGIE BURGERS,” “VEGGIE DOGS,” “VEGGIE CHIK’N,” “VEGGIE MEAL STARTERS,” “VEGGITIZERS,” and “VEGGIE BREAKFAST,” were misleading and violated various consumer protection laws. Kennard’s lawyers were Fitzgerald Joseph of San Diego and Jackson & Foster of Mobile, Ala.
In her complaint, Kennard said she “lost money” because she wouldn’t have paid as much for Kellogg’s “veggie” products had she known they didn’t contain what she considered to be veggie ingredients. She claimed to represent other consumers who she said “overpaid for the Veggie Products.”
Sadly for her, U.S. District Judge William Orrick wasn’t buying it. He quickly granted Kellogg’s motion to dismiss, saying “it is implausible” that a “reasonable consumer would be deceived” by the packaging. The judge allowed Kennard and her lawyers to amend the complaint to explain “why a significant portion of the general consuming public” would think “veggie” meant vegetables and not “grains, legumes and oil.”
Kennard’s lawyers rose to the challenge and added consumer surveys they said showed 80% of consumers were misled. They also pointed to Kellogg’s trademark application, which said its veggie products were “vegetable-based.”
They struck out a second time, however. In a Sept. 14 order, Judge Orrick said the survey was fatally flawed because it didn’t ask consumers what they thought “veggie” meant and instead set up a “false dichotomy” between two types of meat substitutes, those made from vegetables and those made from grains and oils.
“Plaintiff’s survey asked the wrong question – what plant-based ingredients the consumers believed were primarily in a product,” the judge wrote. “The right question,” he said, was whether consumers thought the products were meat alternatives or made with vegetables as opposed to other ingredients.
To defend his decision, Judge Orrick cited previous Ninth Circuit decisions dismissing claims Diet Dr. Pepper implied it would reduce a consumer’s weight and the idea a reasonable consumer would think Trader Joe’s “soymilk” comes from a cow. Kennard’s case had no similarity to a lawsuit against Gerber Products, he went on, where baby food jars had pictures of whole fruits they didn’t contain.
“The problem plaintiff faces here is that VEGGIE does not plausibly refer to any particular ingredient (unlike `bean burger’ or `tofurkey,’ names that do call out particular ingredients) or even, as discussed above, vegetables as a class of ingredients,” he concluded.
This is at least the second time Kennard has told a federal judge she was misled into buying food products. The San Francisco resident sued Lamb Weston Holdings in 2018, alleging its Alexia brand sweet potato fries contained too much empty space. That case, repped by Pacific Trial Partners, ended in an apparent settlement after Judge Yvonne Gonzalez Rogers refused to dismiss her “nonfunctional slack fill” claims.
Jack Fitzgerald of Fitzgerald Joseph and Sidney W. Jackson of Jackson & Foster are frequent filers of consumer class actions. They teamed up as recently as Sept. 9, when plaintiff Chelsea Frederick accused Perrigo of misleading consumers about how many bottles of Burt’s Bees infant formula can be made from a package of concentrate. They also represent plaintiff Callie Green, who accuses Hain Celestial of misleading her about infant formula.