SAN FRANCISCO (Legal Newsline) - Class action lawyers won't give up after a federal judge through out their claims Catalina Crunch cereals mislead consumers into thinking their flavors contain those actual ingredients.
Benjamin Gubernick of Waldo Gubernick Law Advocates filed his notice of appeal to the U.S. Court of Appeals for the Ninth Circuit on March 20. He and plaintiff Karen Collyer lost their case in California federal court on Feb. 23 when Judge Araceli Martinez-Olguin entered judgment for Catalina Snacks.
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.