SAN FRANCISCO (Legal Newsline) - Class action lawyers can take joy in a recent ruling that allows their case over the ingredients in fruit snacks to move forward.
San Francisco federal judge Jon Tigar on March 31 denied parts of a motion to dismiss by AriZona and Hornell Brewing while granting others. However, those parts of the complaint that were dismissed can re-filed because "it is clear that the complaint could be cured by the allegation of additional facts," Tigar wrote.
The suit says the companies are trying to market to health-conscious consumers when they package fruit snacks. At issue are the claims "MADE WITH REAL FRUIT" and "FRUIT IS OUR FIRST INGREDIENT” on Arnold Palmer Half & Half Mixed Flavor fruit snacks and Green Tea Mixed Flavor Fruit Snacks.
Plaintiff Marcia Campbell says the snacks contain no real fruit, including none of the fruit depicted on the packaging. The first ingredient listed on the back label is pear juice from fruit juice concentrate, while the front label contains pictures of strawberries and other fruits.
"The products thus allegedly violate the FDA regulation in this regard," Tigar wrote. "Campbell's claims predicated on allegations that the depicted fruits are not present in the product are not preempted because they concern language that is, in this respect, 'materially different from' the language required by the regulation."
Tigar also could not definitively conclude a "reasonable consumer" would not be misled by the packaging, refusing to dismiss the suit on that standard.
"When juxtaposed against a backdrop of lemons, strawberries, peaches and mangoes, the statements 'made with real fruit' and 'fruit is our first ingredient' would communicate to a reasonable consumer that some nonzero amount of the depicted fruits is actually present..." the decision says.
"But it is undisputed that the products contain none of these fruits."
Campbell's breach of warranty claim was dismissed with leave to amend. She failed to allege a breach because AriZona did say the snacks were made with real fruit.
The warranty allegedly breached should have been from a promise the snacks contained some of the fruits depicted on the package, Tigar wrote.
She will also need to allege in her amended complaint that she lacks an adequate remedy for equitable relief before suing under California consumer protection laws. She will also need to allege she relied on statements from AriZona's website and social media posts when purchasing the snacks.
Good Gustafson Aumais and The Keeton Firm are representing Campbell.