Kelvin Brown filed a class-action lawsuit against Kellogg Sales Company on Saturday alleging that the company’s strawberry flavored Pop-Tart is represented inaccurately on the packaging. The plaintiff claims that the label on the box “gives consumers the impression” that the filling inside the pastry includes only strawberries in its fruit ingredients when it also contains apples and pears.
“Defendant’s branding and packaging of the Product is designed to – and does – deceive, mislead, and defraud plaintiff and consumers,” the complaint said. It claimed that Kellogg sold more of the product and at a higher cost because of the alleged misconduct and increased their profits while harming consumers.
The complaint averred that consumers purchasing a food product with the term “strawberry” would not expect to find other fruit ingredients, however, the ingredients list on the back of the Pop-Tart box includes “dried strawberries, dried pears, (and) dried apples.”
The plaintiff said in the complaint that the representations of the product on the packaging include “half of a fresh strawberry,” the words “Frosted Strawberry,” and a picture of the Pop-Tart, which has a “dark red fruit filling.” The lawsuit alleged that this suggested that the product includes strawberries, but does not suggest that it would include apples or pears.
Brown further alleged that the packaging does not disclose the percentage of strawberries in the product, which he claimed is a breach of legal requirements, because strawberries are the “characterizing ingredient.” The complaint said that “the labeling creates an erroneous impression that strawberries are present in an amount greater than is actually the case.” The plaintiff noted that the product also contains some amount of Red 40, which supposedly increases the red filling color in the depiction and adds to the deceptive advertising.
The plaintiff claimed he was harmed by the allegedly false advertising and would not have purchased the product at the price if he knew the labels were not consistent with the ingredients. He is seeking certification for a class of others who purchased the Pop-Tarts in New York during the statute of limitations, and is seeking relief for the entire class.
Kelvin Brown is represented by Spencer Sheehan. The suit alleges that Kellogg breached New York General Business Law and participated in fraud and unjust enrichment.