Because my mother always refused my pleas for Froot Loops when I was a kid, I, unfortunately, will not be a member of a newly-proposed class attacking this tasty breakfast cereal. On behalf of those consumers who have enjoyed Froot Loops, a California resident has filed suit in federal district court for the Northern District of California under Section 17200 of California’s Unfair Competition statute, claiming that Kellogg, the manufacturer of Froot Loops, deceives consumers into believing that the cereal contains real fruit by associating the product with a word that sounds like fruit. In Werbel v. Kellogg USA, the plaintiff contends that he purchased Froot Loops cereal for years believing that it contained actual fruit and was, thus, healthier than other similar breakfast cereals. See articles here and here.
This is not the first such litigation of its kind.
There have been a bevy of such fruity complaints, testing the reach of Section 17200, most of which were dismissed either voluntarily or by motion, including McKinniss v. General Mills, Inc., 2007 WL 4762172 (C.D. Cal. Sept. 18, 2007) (Berry Berry Kix, Trix, Fruity Cheerios, Trix Yogurt, Yoplait Go-gurt); McKinniss v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. Sept. 19, 2007) (Froot Loops) (dismissed on defendant’s motion).
In fact, just a few months ago, on May 21, Judge Morrison England, Jr. of the U.S. District Court for the Eastern District of California dismissed an almost identical suit, Sugawara v. PepsiCo, Inc. In Sugawara, the plaintiff claimed that she purchased the “Cap’n Crunch with Crunchberries” cereal with the belief that the “Crunchberries” either contained or were made with real berries. Judge England’s dismissal was particularly blunt stating that “[t]his Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a ‘crunchberry,’” and that “it is simply impossible for Plaintiff to file an amended complaint stating a claim based upon these facts. The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense. The Court has no intention of allowing that to happen.”
Some may wonder how the Sugawara and other fruity cereal decisions co-exist with the Ninth Circuit’s decision earlier this year permitting a plaintiff to proceed with a misleading advertising claim against Gerber’s “Fruit Juice Snacks” (decision previously described here.) The Sugawara court expressly distinguished Williams by noting that 1) the defendant’s use of berries on the Cap’n Crunch packaging was part of the larger term “crunchberries;” 2) there were no pictures of fruit on the box, but only bright purple, red, and teal cereal puffs, and 3) there were no claims that the product was nutritious or otherwise supported healthy development.
Mr. Werbel will most likely face a motion to dismiss in his case against Froot Loop. To avoid dismissal, he will have to argue that his facts are close to those alleged in Gerber. In Williams v. Gerber Products Co., the Ninth Circuit did not opine on the merits of the case but determined the plaintiff’s allegations were sufficient to state a claim noting that 1) the product was actually named “Fruit Juice Snacks,” 2) the package contained pictures of a variety of real fruit, 3) the package stated that the Snacks were made from “fruit juice and other all natural ingredients,” and 4) the package stated that Snacks is “just one of a variety of nutritious Gerber Graduate foods and juices that have been specifically designed to help toddlers grow up strong and healthy.” While the Williams court acknowledged that a “nutritious” claim on a package may be considered non-actionable puffery because nutrition is difficult to measure, the claim, when considered with the other packaging statements and pictures, could potentially mislead the average consumer.
We will see if the latest Froot Loops litigation goes the way of the Crunchberries, but the smart
manufacturer should be cautious about inadvertently creating misleading packaging based on the impressions conveyed by the box and the ads. Unless a product is truly a significant source of fruit, statements about a product’s nutritional and health value in conjunction with pictures of real fruit should be avoided to minimize litigation risk. However, manufacturers probably don’t need to worry if they use fanciful fruit-like words, such as “froot” and “crunchberries” in their packaging and advertisements, at least outside the litigious state of California. So get those creative (fruit) juices flowing.
-Suzy Wilson and Candida Harty
