SAN FRANCISCO (Legal Newsline) - A class action lawyer is giving up his lawsuit that alleged keto-friendly Catalina Crunch cereals misled consumers.
California federal judge Araceli Martinez-Olguin in January tossed claims made by lawyer Benjamin Gubernick and plaintiff Karen Collyer but granted them leave to amend their complaint. They notified the court that they wouldn't be doing that, and Martinez-Olguin entered judgment for Catalina Snacks on Feb. 23.
The suit alleged flavors like "chocolate banana" do not actually contain real banana, despite showing bananas on the package. Catalina Snacks argued the snacks tasted exactly how they were described.
Judge Martinez-Olguin wrote claims made by the plaintiff were preempted by the federal Food, Drug, and Cosmetic Act.
"(W)hile the FDCA does not preempt preexisting state common-law duties that 'parallel federal requirements,' it does preempt state-law claims that ultimately are dependent on the existence of violations of federal law," the ruling says.
"That is the case here. Collyer's claim that the cereal labels at issue are unlawful is based on violation of the Sherman Law, which expressly incorporates the FDCA and regulations as state law."
And the claims also failed the "reasonable consumer" test, Martinez-Olguin wrote.
"Reasonable consumers are aware that cereals depict images of fresh fruit as a serving suggestion, and reasonable consumers do not invariably expect to receive such fruit in their cereal - particularly when the contents of that cereal are prominently and adequately described in the ingredient list," she wrote.