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Volume XII, Number 183

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Pop-Tarts False Ad Lawsuit Permanently Dismissed

  • On May 24, an Illinois federal judge permanently dismissed a proposed class action that alleged Kellogg misled consumers to believe its Frosted Strawberry Pop-Tarts contained more strawberries than actually present in the product. The plaintiff argued that strawberries are the pastries’ characterizing ingredient and their amount has a material bearing on the product’s price, or a consumer’s acceptance of the product. However, the judge ruled that the label was not deceptive because the Pop-Tarts filling contained some amount of strawberries.

  • U.S. District Judge Stephen McGlynn found that the front of the packaging did not make a claim regarding the amount of strawberry contained in the filling, and noted that the plaintiff actually conceded that the filling does contain some strawberries. Judge McGlynn cited to Bell v. Publix Super Markets, Inc., quoting “[w]hat matters most is how real consumers understand and react to the advertising. Where the plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels or other advertising, dismissal on the pleadings may be well justified.” Judge McGlynn held that the plaintiff’s interpretations of the Pop-Tarts label is unreasonable and not grounded in reality of how the public understands and reacts to advertising.

  • Judge McGlynn dismissed the plaintiff’s claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), as well as the claims of breach of warranty, negligent misrepresentation, fraud, and unjust enrichment.

 

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 145
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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