New Torts for Pop-Tarts

Millions of Americans seek out healthy foods with “organic” and “GMO-free” labels in the quest to be a little nicer to their bodies. And while few would consider Pop-Tarts a health food, an enterprising law firm in New York has filed a series of putative class actions targeting Kelly Sales Co for not putting enough strawberries into its toaster pastries.

Kellogg argues in court papers that “reasonable consumers do not buy Frosted Strawberry Pop-Tarts because they believe they are high in antioxidants or Vitamin C.”

Still, plaintiffs lawyer Spencer Sheehan of Sheehan & Associates in Great Neck, New York, does have a point about the obligation to provide accurate food labeling. “It’s the most basic, simplest, fairest thing to do. Tell people what they’re getting,” he said.

Sheehan also told Reuters that he’s “not expecting to find a fresh strawberry inside” a Pop-Tart. But he argues that if the product is called “Strawberry Pop-Tart,” then strawberries should be the No. 1 fruit in the filling.

Instead, he alleges in his Oct. 19 complaint that strawberries come in behind cheaper dried pears and apples in the list of ingredients. Among consumer law and breach of warranty claims are allegations of negligence and fraud.

“The product’s common or usual name of ‘Whole Grain Frosted Strawberry Toaster Pastries,’ is false, deceptive, and misleading, because it contains mostly non-strawberry fruit ingredients,” he wrote in the complaint filed in Manhattan federal court.

Moreover, he wrote, the pastries are “unable to confer any of the health-related benefits of strawberries because the amount of strawberries is insufficient to provide the benefits of this fruit.”

A Kellogg spokesperson in an email said, “While we don’t comment on pending litigation, we can tell you the ingredients in and labeling of all of our Pop-Tart products fully comply with all legal requirements.”

The suits are the latest in a long line of fruit-flavored litigation.

Whether consumers are actually upset about the proportion of strawberries in the filling is another question. But the litigation is a reminder for companies to be careful about how they describe their products.

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