SAN FRANCISCO (Legal Newsline) - The class action plaintiff suing it got what she paid for, says the maker of a "keto-friendly" cereal.
Catalina Snacks filed a motion to dismiss March 21 in San Francisco federal court, as it fights a lawsuit brought by plaintiff Karen Collyer. She alleges consumers are misled when they purchase certain flavored Catalina Crunch cereals because they don't include the ingredients.
For instance, "chocolate banana" does not contain real banana.
"Plaintiff does not allege that any of the cereals fail to taste as described on the packaging," the motion says. "Nonetheless, she makes the implausible claim that the label is false or misleading."
Lawyer Benjamin Gubernick of Gubernick Law is pursuing the case. His plaintiff Collyer says she believed she was purchasing cereals that contained fruits and 'premium ingredients' that are represented on the package.
She says there is no banana, apple, honey or mint in the line of products and that they are falsely marketed as "keto-friendly." She claims the cereals are sold for $7 to $10 for a nine-ounce bag and that consumers pay more for the cereal because of its packaging.
Catalina Snacks says Collyer does not have standing to pursue claims over products she didn't buy. She purchased chocolate banana and honey graham but did not claim to have purchased apple cider donut or mint chocolate.
Catalina makes a number of arguments for dismissal of the entire complaint, including that Collyer fails to allege a "reasonable consumer" would be misled. The cereals contain oils, extracts and other natural flavoring components obtained from banana, apple, mint, honey or other "natural sources," the motion says.
"There is no allegation that the cereals do not taste as described," the motion says. "The complaint does not even take the position that the cereals' natural flavors were not derived from banana, apple, mint and honey.
"As has been repeatedly recognized by courts in similar cases involving other common natural flavors, reasonable consumers of cold cereal would understand that 'Chocolate Banana,' 'Apple Cider Donut,' 'Mint Chocolate,' and 'Honey Graham' refer to a flavor, not an ingredient."