NEW YORK (Legal Newsline) - Class action lawyers failed to make their case when they alleged the maker of Polaner fruit spreads misled consumers with claims the products were "all fruit."
The lawsuit claimed that couldn't be true if the spreads contained citric acid and "natural flavor." But New York federal judge Vincent Bricceti on Dec. 29 rejected that argument in granting defendant B&G Foods' motion to dismiss.
The company filed its motion in March. Plaintiff Deena Indiviglio is a plaintiff in at least two other similar cases, B&G said, and her lawyer is Spencer Sheehan of Sheehan & Associates, who faces plenty of vitriol from defendants and judges over his theories of consumer deception.
Indiviglio and Sheehan failed to allege the spreads contain non-fruit ingredients, Judge Bricceti wrote.
"Plaintiff defines 'fruit' as 'the seed-associated fleshy structures of produce of plants that are sweet or sour and edible in the raw state,'" Bricceti wrote.
"Nonetheless, the appearance, description and physical packaging of the product patently reveals it does not contain solely whole, unaltered fruit in its natural state.
"No reasonable consumer would open a jar of cherry-flavored product and sincerely expect to find it full of raw cherries."
The lawsuit claims the product label's statement of "sweetened only with fruit juice" further convinces the consumer the product contains all fruit ingredients.
It also claims consumers pay a "premium" price for Polaner expecting it to have less processed and more natural ingredients and rely on the words "all fruit" on the label. Indiviglio claims B&G's actions violate multi-state consumer fraud laws.
But B&G said the complaint consists "entirely of non-sequiturs."
"Plaintiff first admits that 'citric acid is an organic acid in a variety of fruits, especially citrus' but then alleges that 'when used as an ingredient in other foods [it] is not derived from fruits but industrially produced by fermentation from the fungus Aspergillus niger," the motion says.
"Plaintiff further surmises that citric acid derived from fermentation is 'used by industry.' Fatally, Plaintiff never directly alleges anything about the citric acid in Polaner All Fruit. The same is true regarding Plaintiff's claims about natural flavors."