Serial (or Rather Cereal) Issues in Advertising
This post was written by Rachel Rubin.
If it looks like fruit and sounds like fruit, it must be fruit. Well, not exactly, and please don’t waste our time, says a California court. Ray Werbel recently filed a lawsuit in San Francisco federal court claiming that he bought and ate Froot Loops cereal, believing it was healthy . . . for four years. Upon discovering that it was in fact a sugary children’s cereal, Werbel claims he was misled by Toucan Sam’s claims about “the flavor of froot.” He seeks unspecified punitive and actual damages to be paid to all consumers who, like him, bought Froot Loops under the same mistaken belief.
The “Froot” in Kellogg’s Froot Loops cereal is not real fruit. Eating the “froot” does not provide the same health benefits of real fruit. We expect the court to dismiss this complaint just as it has recently dismissed similar complaints – and there have been a few of them lately. Though Werbel claims otherwise, he may be a serial cereal litigant. He also brought suit against Pepsi, the maker of Cap’n Crunch with Crunchberries cereal, not realizing that a nearly identical case had been dismissed by the court earlier this year. In May, a judge in the U.S. District Court in the Eastern District of California dismissed a complaint by a woman who claimed she had purchased Cap'n Crunch with Crunchberries because she believed "crunchberries" were real fruit. The plaintiff, Janine Sugawara, alleged that she had only recently learned to her dismay that the "berries" were in fact simply brightly colored cereal balls. Though the colorful “berries” did contain a small amount of strawberry fruit concentrate for color and flavor, it was not enough to be considered an actual strawberry. Judge Morrison England, Jr. stated that:
This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a "crunchberry." Furthermore, the "Crunchberries" depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains "sweetened corn & oat cereal" and that the cereal is "enlarged to show texture." Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist. . . . So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.
Noting that normally the loser on a motion to dismiss would get a chance to amend the complaint, that was not going to happen here:
In this case, . . . 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.
More on the decisions here, here, and here.
In other breakfast news, consumers filed a $5 million class action suit against General Mills over its claims that Cheerios helps to lower cholesterol. Suits by consumers in three states were consolidated in federal court in New Jersey last week. The suits were prompted by a warning the FDA issued to General Mills in May on the claims that Cheerios “can lower your cholesterol 4 percent in 6 weeks” and has been “clinically proven to lower cholesterol.” As we previously reported, the FDA said that Cheerios’ claims regarding its benefits in the prevention and treatment of a disease (hypercholesterolemia) likely make it a drug under FDA standards. Cheerios responded to the FDA, arguing that its claims are not unlawful disease claims, and that the claims are consistent with the FDA’s health claim regulations. General Mills says it is in talks with the FDA to resolve the issue. General Mills’ answer to the complaint is due at the end of the month.
Why This Matters
Besides setting the media and blogosphere abuzz with bad puns and witticisms (nor could we help ourselves), this case is interesting from an advertising perspective. It reminds us that the court has a sense of humor, and, more importantly, addresses the “reasonable person” standard. It affirms two important points: (1) that the “reasonable person” is expected to have some common sense, some perspective, and to not take things so literally, but (2) companies are still accountable for the content of their advertising, especially when statements cross the line from marketing messages to health- or scientific-related claims.
As always, you can contact the author, Rachel Rubin, Adam Snukal or any other Reed Smith attorney with whom you regularly work, for more information or assistance.
