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Volume XII, Number 27

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Snack Time: California Federal Court Finds Prominent Pictures of Produce on Fruit Snacks Not Deceptive

Last month, the Northern District of California held that prominent photographs of fruits and vegetables on Plum Organics’ food packaging were not enough to mislead a reasonable consumer into believing that the pictured produce were the product’s predominant ingredients. A picture on food packaging may speak a thousand words but, according to the court, reasonable consumers know to look at the FDA-required ingredients list on the product package for a product’s primary ingredients.

In Workman v. Plum Inc., No. 15-cv-2568 (WHA) (N.D. Cal.), the court granted Plum Organics’ motion to dismiss against a putative class of consumers. At issue were pictures of four ingredients prominently displayed on Plum Organics’ Mighty 4 puree pouches and fruit bars, a line of snacks marketed for consumption by toddlers. The packaging of one such Mighty 4 puree pouch displayed pictures of pumpkin, pomegranate, quinoa and yogurt. While the puree pouch did contain each of these ingredients to some extent, the primary ingredients were actually pureed apple, pear or banana. The issue was whether the product packaging misled consumers into believing that these four foods constituted the primary ingredients of the snack.Plum Organics Blog Article Image

The court found that a reasonable consumer would not simply assume that the size of the pictured ingredients on the food’s packaging correlated to their predominance in the product. The court emphasized that supermarkets are filled with products displaying large pictures of fruits and vegetables on their labels that are not the primary ingredients. According to the court, every reasonable shopper knows that “the devil is in the details”; here, Plum Organics’ back panel ingredient list enumerated each of the snack’s ingredients in order of predominance, as required by the FDA. Thus, in the court’s view, the ingredient list resolved any potential ambiguity regarding the predominance of the depicted ingredients.

The court’s decision was supported by earlier cases, including Red v. Kraft, No. 10-cv-1028, 2012 WL 5504011 (GHW) (C.D. Cal. Oct. 25, 2012), which held that the front packaging on a box of crackers depicting pictures of vegetables along with the tagline “made with real vegetables” did not deceive a reasonable consumer into thinking that a cracker is composed primarily of fresh vegetables. Similarly, in Henderson v. Gruma Corporation, No. 10-cv-4173, 2011 WL 1362188 (AHM) (C.D. Cal. Apr. 11, 2011), a package of dip containing the phrase “with garden vegetables” did not deceive a reasonable consumer when the product did actually contain avocado powder, dehydrated onion, garlic powder, and bell pepper. The court distinguished Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008), because, among other things, the food labels in Williams depicted fruits that were not actual ingredients within the fruit snack. By contrast, each of Plum Organics’ pictured ingredients was, in fact, an actual ingredient in the puree or snack bar, so the court found no affirmative misrepresentation on the part of Plum Organics.

As the court stated with a-plum, the “devil is in the details.”

© 2022 Proskauer Rose LLP. National Law Review, Volume V, Number 351
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About this Author

D Alexander Campbell, Proskauer Rose, UK Tax Attorney, Capital Funds lawyer
Associate

Alec Campbell is an associate in the Tax Department and a member of the Private Investment Funds Group.

Alec's practice focuses on the formation and operation of private investment funds, including venture capital funds, buyout funds, funds-of-funds, secondary funds and other investment partnerships.

Prior to joining Proskauer, Alec was an associate in the Tax Department at Cahill Gordon & Reindel, LLP, where he advised clients on the tax aspects of securities offerings and financing arrangements.

617.526.9690
Russell Kostelak, Litigation Department  Proskauer Rose, New York,
Associate

Russell Kostelak is an associate in the Litigation Department. He focuses on complex litigation in federal and state courts with an emphasis on intellectual property, including copyright, trademark and advertising law. Russell has handled copyright infringement and ownership disputes on behalf of textbook and music publishing companies; trademark infringement, clearance and prosecution matters; and false advertising cases implicating consumer fraud allegations. He also has experience in securities litigation matters, including shareholder class actions and insider...

212-969-3216
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