A federal judge has toasted a class action accusing Kellogg’s of substandard sums of strawberries in its Pop-Tarts.
Stacy Chiappetta, who said she paid about $5.50 for a dozen unfrosted strawberry Pop-Tarts at a Chicago Heights Jewel-Osco store in March 2021, accused Kellogg's of violating the Illinois Consumer Fraud and Deceptive Business Practices Act because the fruit filling also includes dried pears and apples, as well as red 40 food dye.
In an opinion issued March 1, U.S. District Judge Marvin Aspen granted Kellogg’s motion to dismiss the complaint as well as Chiappetta’s request for an injunction.
According to Aspen, Chiappetta’s allegations were based on the legal principle of deception, rather than an unfair business practice. Her evidence included a picture of the product packaging, which included an image of half a strawberry, as well as a Pop-Tart opened to display the red fruit filling.
In arguing for dismissal, Kellogg’s argued the box “does not represent that strawberry Pop-Tarts contain no fruits other than strawberries, that the filling contains a specific amount of strawberries, or that the filling includes only a de minimis amount of other fruits.”
Kellogg’s further said the use of red 40, and by extension its inclusion on the label, proactively suggests the filling contains something beyond strawberries. It also argued “courts have made clear that a product’s color does not convey to a reasonable consumer that the product contains certain agreements,” Aspen wrote.
Aspen rejected Chiappetta’s argument that the picture of the strawberry leads shoppers to conclude the filling contains a certain quantity of said fruit. He pointed to a 2022 opinion from the Southern District of Illinois, Floyd v. Pepperidge Farm, in which a judge said the labeling for “Golden Butter” crackers had no untruths because the crackers were golden-colored and did contain butter.
Chiappetta’s warranty claims also failed because, in addition to failing to show she gave the company notice of her intent to sue, “Kellogg never made the representation that Chiappetta claims it made,” Aspen wrote. “The word ‘strawberry,’ combined with a picture of half of a strawberry and a Pop-Tart oozing red filling, does not guarantee that there will be a certain amount of strawberries in the product’s filling. Chiappetta purchased strawberry Pop-Tarts that did, in fact, contain strawberries. The product comported with its packaging. This is fatal to Chiappetta’s claims.”
Aspen also said Chiappetta failed to adequately allege a violation of the federal Magnuson-Moss Warranty Act because such “claims depend on the existence of a viable state-law warranty claim, and Chiappetta has none.”
In rejecting Chiappetta’s negligent misrepresentation claim, Aspen disagreed with the argument Kellogg’s “is in the business of supplying information for the guidance of others in their business transactions.” Any product information Kellogg’s distributed, Aspen wrote, “was ancillary to the sale of” Pop-Tarts.
Chiappetta’s fraud and unjust enrichment claims failed on similar grounds. Aspen said the entire complaint rested on the ability to plausibly allege deception. He also denied her request for a preliminary and permanent injunction that would force Kellogg’s to correct the product packaging she challenged.
Not only does Chiappetta’s complaint lack viable claims, Aspen concluded, but now she knows what the strawberry filling contains and she is unlikely to suffer any legal damage going forward.
Aspen gave Chiappetta until March 22 to amend her complaint.
Chiappetta has been represented by attorney Spencer Sheehan, of Great Neck, N.Y.
Kellogg's is represented by attorney Dean N. Panos, of Jenner & Block, of Chicago.