Source - Food & Beverage Litigation Update | Issue 781

Fraud Claims To Continue In Kashi Strawberry Bars Ingredient Suit

An Illinois federal court has granted a partial motion to dismiss a putative class action alleging that Kashi Sales L.L.C. misled consumers by making the flavoring of “Ripe Strawberry” cereal bars with pear juice concentrate and apple powder. Johnston v. Kashi Sales L.L.C., No. 21-0441 (S.D. Ill., entered September 8, 2022). The plaintiff alleged that she “expected the filling would contain more strawberry ingredients than other fruit ingredients, but did not expect that the ‘filling would contain more pears and apples compared to strawberries.’” The court first disposed of the plaintiff’s request for injunctive relief, finding that she did not have standing because she is aware of the allegedly deceptive sales practices.

The court discussed a number of decisions centered on similar issues and compared their outcomes. “Like the deceptive advertising cases that survive dismissal—where the words in defendants’ labels were subject to different plausible interpretations—the phrase ‘Ripe Strawberry’ is subject to different plausible interpretations,” the court found. “It is unclear whether Kashi is describing ‘Ripe Strawberry’ as a flavor, smell, ingredient, or a process (i.e., selecting only fruit that is ripe).” The court also noted that “Kashi’s packaging further contributes to Johnston’s reasonable interpretation,” and declined to dismiss the plaintiff’s allegation based on Illinois’ consumer fraud statute.

The court then turned to the plaintiff’s allegation that she expected the product to contain a non-negligible amount of honey based on the packaging representation “Made with Wildflower Honey.” “But similar to how it was unreasonable for the plaintiff in [Red v. Kraft Foods Inc.] to be deceived into thinking a box of crackers contains huge amounts of vegetables—it is fanciful that reasonable consumers will be deceived into thinking that the primary sweetening ingredient in fruit-filled cereal bars is honey—not fruit.” Accordingly, the court dismissed the consumer fraud allegation.

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