Judge rejects class action over strawberry Pop-Tarts

NEW YORK (Legal Newsline) – A New York federal judge has tossed a proposed class action lawsuit that complained the strawberry filling in Pop-Tarts contains other fruits and dyed red to mislead customers.

“To the extent the label contains any ambiguity about the presence or amount of strawberries in the product, in the Second Circuit, courts are to consider ‘disclaimers and qualifying language,’” Judge Andrew Carter wrote on March 31.

“Here, the reasonable consumer would overcome any confusion by referring to the unambiguous ingredient list on the packaging.”

New York attorney Spencer Sheehan of Sheehan & Associates sued Kellogg in New York federal court in September 2020, claiming consumers wouldn’t know from glancing at the label that Strawberry Pop-Tarts contain pears and apples, as disclosed in the ingredients list on the package.

He also claimed red dye only increased the confusion, leading consumers to believe Pop-Tarts are healthy snacks containing fresh strawberries.

Kellogg’s lawyers filed a motion to dismiss refuting each of Sheehan’s claims. The confusion he says named plaintiff Kelvin Brown suffered “does not pass the straight face test,” Kellogg said, let alone the standard the U.S. Supreme Court laid down in its landmark Ashcroft v. Iqbal decision, which requires plaintiffs to present facts supporting the plausibility of their claims.

“No reasonable consumer equates a Pop-Tart to a bushel of strawberries, and it strains credulity to believe that a consumer would purchase Frosted Strawberry Pop-Tarts because they provide Vitamin C, antioxidants, or other `health-related benefits,’” Kellogg’s lawyers at Jenner & Block said

Sheehan failed to state a claim under the New York General Business Law, Judge Carter wrote, because he failed to prove a reasonable consumer would be misled by the packaging.

“Courts typically find misleading representations about ingredients when the product label explicitly asserts that is made with a specific ingredient or specifies the quantity of an ingredient when the ingredient is not predominant in the product,” he wrote.

“No reasonable consumer would see the entire product label, reading the words ‘Frosted Strawberry Pop-Tarts’ next to a picture of a toaster pastry coated in frosting, and reasonably expect that fresh strawberries would be the sole ingredient in the product.”