Monthly Archives: September 2015

Welch’s Fruit Snacks Violate “Jelly Bean Rule” Alleges New Class Action Lawsuit

A class action lawsuit has been filed against Welch Foods, Inc. alleging that it is misrepresenting the fruit content and the nutritional and health qualities of its fruit snacks.  The case was filed on September 18, 2015 and is pending as case no. 1:15-cv-05405 in the U.S. District Court for the Eastern District of New York.

Specifically, plaintiffs allege that Welch deceived consumers by suggesting that Welch’s Fruit Snacks contain significant amounts of the fruits depicted in the marketing and on the labeling of the products, are nutritious and healthful to consume, and are more healthful than similar products.  In this regard, plaintiffs highlight that the product labels include the claim that the Fruit Snacks are “Made With REAL Fruit” and include images “of the characterizing fruit.”  Moreover, they allege that claims such as contains “100% Vitamin C,” “25% Vitamins A & E,” and “no preservatives” are representations that the Fruit Snacks are healthy.

But the products are not healthy, according to plaintiffs, because the products allegedly “contain only minimal amounts of the vibrantly depicted fruits, and are no more healthful than candy.”  Those depicted fruits, plaintiffs allege, “are not the predominant ingredient or even the most prominent fruit in the” Fruit Snacks which actually “contain significant amounts of sweeteners and added sugars, as well as artificial flavors and artificial colors.”

Notably, Plaintiff’s specifically alleged that the Fruit Snacks or misbranded under FDA regulations because Welch fails to display the true percentage of the fruits used in the product name on the front label in violation of 21 C.F.R. §102.5(b).  That provision requires a product to “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.”

In addition, Plaintiff’s assert that the Fruit Snacks violate the FDA’s Fortification Policy (known as the “jelly bean rule”) which provides that the FDA “does not encourage indiscriminate addition of nutrients to foods, nor does it consider it appropriate to fortify . . . sugars; or snack foods such as candies . . . .”  21 C.F.R. §104.20(a).   In this regard, Plaintiffs further allege that if Welch “had not … fortified the Fruit Snacks with vitamins A, C, and E, they could not claim that these sugary snacks were a nutritious, vitamin-rich food.”

In response to the Complaint’s allegations, Promotion in Motion, which makes the snacks under license for Welch Foods,  issued the following statement: “It is a fact that fruit, whether in the form of juices or more recently purees, has always been the first ingredient in Welch’s Fruit Snacks.  Our labeling is truthful and gives consumers the information they need to make informed decisions.  For nearly 15 years, we have been proud to bring consumers snacks made with the highest quality ingredients, that consistently meet and even exceed quality standards and FDA regulation.”

This case underscores the continuing risks associated with marketing products that include real fruit (including fruit juices) but also added sugar and other ingredients.  Food companies naturally want to include imagery highlighting the fruit flavors associated with a product and highlight that the products include real fruit.  And fortification can help make a product more healthy and attractive to consumers.  On the other hand, plaintiff’s attorneys are quick to attack such marketing as detailed above.  This case also has echoes of the  class action over Coca-Cola’s Vitaminwater which settled last year, where the central allegation was that the product’s name and labeling were misleading because many of the flavors contained negligible amounts of fruit juice and were predominantly made up of water and sugar.