Are you Eating Pop-Tarts® Whole Grain Frosted Strawberry Toaster Pastries for your On-the-Go Holiday Breakfast?

Life gets hectic over the holidays, and many choose an on-the-go breakfast. The question becomes—Are you Eating “Pop-Tarts®” for your Holiday Breakfast?  Specifically, are you eating the “Whole Grain Frosted Strawberry Toaster Pastries”? If so, take a look at the recently filed lawsuit. Here is a link to the full complaint.

PopTart-Lawsuit-NY – PDF

Russett et alia. V. Kellogg Sales Co.,  Case 7:21-cv-08572-NSR

Allegations:

In this multi-million dollar lawsuit there are allegations of Deception as well as False and Misleading labeling 

Here plaintiff is alleging that the front of package labelling fails to disclose that the product is not 100% Strawberry. Rather, “Pop-Tarts®”, a popular breakfast favorite, contains dried pears too! Backed up with the labelling and competitor brands the plaintiff alleges that:

1. “Kellogg Sales Company (“defendant”) manufactures, labels, markets, and sells “Whole Grain Frosted Strawberry Toaster Pastries” under its “PopTarts®” brand (“Product”). (Complaint p.1)

2. “The packaging only depicts strawberries, in words and images, and shows the Product’s bright red filling, matching the color of strawberries.“ (Complaint p.1)

3. “The strawberry representations are misleading because the Product has less strawberries than consumers expect based on the labeling.“ (Complaint p.1)

Let’s take a look at the Front of Packaging Label.

The plaintiff alleges that the name: “Whole Grain Frosted Strawberry Toaster Pastries,” is false, deceptive, and misleading, because it contains mostly non-strawberry fruit ingredients. Here is the ingredient listing descending order of prominence of each ingredient. The question is why does the product name include Strawberry when in fact it is way down on the list of ingredients and follows apples and pears? Should the product be labelled Fruit filled Toaster Pastries? How about what the complaint suggests using percentages?

Ingredients:
Whole wheat flour, sugar, corn syrup, enriched flour (wheat flour, niacin, reduced iron, vitamin B1 [thiamin mononitrate], vitamin B2 [riboflavin], folic acid), dextrose, soybean and palm oil, bleached wheat flour, polydextrose, glycerin. Contains 2% or less of fructose, wheat starch, calcium carbonate, salt, leavening (sodium acid pyrophosphate, baking soda), vegetable juice for color, dried pears, dried apples, dried strawberries, sodium stearoyl lactylate, citric acid, modified wheat starch, DATEM, cornstarch, gelatin, xanthan gum, brown rice syrup, paprika extract color, soy lecithin, vitamin A palmitate, niacinamide, reduced iron, vitamin B6 (pyridoxine hydrochloride), vitamin B2 (riboflavin), vitamin B1 (thiamin hydrochloride). 

The lawsuit details consumer love of strawberries alleging they are the “world’s most popular berry fruit (Complaint #7. p. 2) and the label is misleading to consumers. Essentially, plaintiff alleges the product is not in federal compliance under 21 CFR sect. 102.5 which details the common or usual name.

https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/cfrsearch.cfm?fr=102.5

Would a listing of percentages of fruit solve the problem?  Ex. the Complaint states:

29. “One example of this disclosure could be, “Whole Grain Frosted Strawberry Toaster Pastries – 80% Non-Strawberry, 20% Strawberry.” 21 C.F.R. § 102.5(b).” (Complaint p.7)

Here is what 21 C.F.R. § 102.5(b). 

“The common or usual name of a food shall include the percentage(s) of any characterizing ingredient(s) or component(s) when the proportion of such ingredient(s) or component(s) in the food has a material bearing on price or consumer acceptance or when the labeling or the appearance of the food may otherwise create an erroneous impression that such ingredient(s) or component(s) is present in an amount greater than is actually the case.”

The complaint depicts competitor brands— Clover Valley from Dollar Tree and Great Value from Walmart- still labelled as “Strawberry  though these companies include legal terminology of “Naturally and Artificially Flavored”.

The complaint concludes with what a reasonable consumer expects and relies on in terms of honest identification of ingredients as well as the premium price.

54. “Reasonable consumers must and do rely on a company to honestly identify and describe the components, attributes, and features of a product, relative to itself and other comparable products or alternatives.” (Complaint p.11).

60. “Similar whole grain frosted toaster pastries which have equivalent amounts of strawberries to Defendant’s Product are, or would be sold for, approximately $4.09 per box of six pouches of two pastries six pastries (20.3 oz or 576g).” (Complaint p.12).

Concluding Commentary– hard to state with certainly how this case will proceed and be decided. What do you think? Ask yourself- is the labeling accurate? Would consumers be deceived by the labeling?

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