UPDATE: Some Claims Dismissed, But General Mills Must Defend “Made With Real Fruit” Statement

A recent post discussed the pending class action suit over General Mills’ Fruit Snacks.  A District Court judge in the Northern District of California has now ruled on General Mills’ Motion to Dismiss that lawsuit and dismissed with prejudice plaintiff’s claims to the extent they are based on statements that Fruit Snacks are “fruit flavored,” “naturally flavored,” and “gluten free.”  The Court let the lawsuit proceed, however, with regard to the statement “Made with Real Fruit.”  See complete Opinion here.

Specifically, the Court agreed with General Mills that any claim based on “fruit flavored” and “naturally flavored” is preempted by the Nutrition Labeling and Education Act (“NLEA”) and, more specifically, the FDA labeling requirements promulgated under 21 U.S.C. § 343(k).  In discussing the relevant labeling requirements – 21 C.F.R § 101.22(i) – the Court stated:

[T]he regulation allows a producer to label a product as”natural strawberry flavored,” even if that product contains no strawberries.  While the regulation’s logic is troubling, the Court is bound to apply it.

Turning to the “gluten free” claim:

 [T]he Court [found] that the statement “gluten free” cannot support Plaintiff’s claims under [California’s unfair business practices and false advertising laws].  The statement is objectively true and communicates nothing more than the absence of gluten in the product — a message used to convey the suitability of the Fruit Snacks to consumers with celiac disease and others who may wish to avoid gluten.  A reasonable consumer is unlikely to interpret the statement  “gluten free” to mean that the Fruit Snacks contain no partially hydrogenated oils, low amounts of sugar or corn-syrup, or that the Fruit Snacks are otherwise healthful.

The Court had a different view, however, of the “made with real fruit” claim.  Plaintiff  alleged that the statement “made with real fruit” incorrectly describes the ingredients, which include partially hydrogenated oil, sugars in quantities amounting to approximately half of each serving and “pears from concentrate” rather than the fruit indicated by the name of the product.  For example, strawberry-flavored Fruit Roll-Ups contain no strawberries.

A reasonable consumer might make certain assumptions about the type and quantity of fruit in the Fruit Snacks based on the statement “made with real fruit,” along with other statements prominently featured on the products’ packaging.  For example, the statement “made with real fruit” appears in large and colorful letters on the side panel of the packaging of strawberry Fruit Roll-Ups.  Additionally, the word “strawberry” appears in large letters on the front, back, top, and bottom panels.  Taken together, these statements might lead a reasonable consumer to believe that product is made with real strawberries, not pears from concentrate.  The names “Fruit Roll-Ups” and “Fruit by the Foot,” along with the fanciful depiction of the products, which resemble fruit leather, may lead to further confusion about the Fruit Snacks’ ingredients.  After seeing these prominent aspects of the packaging, a reasonable consumer might be surprised to learn that a substantial portion of each serving of the Fruit Snacks consists of partially hydrogenated oil and sugars.

On the one hand, the rejection of certain statements by the Court  takes away some of plaintiff’s “ammunition” for arguing that the overall product labeling was deceptive to reasonable consumers.   On the other hand, the Court views the “Made with Real Fruit” statement, in combination with other aspects of the packaging, as more than sufficient for the jury to consider at trial.  It will be interesting to see how this case proceeds and how this ruling might impact any potential settlement discussions.