Froot Loops, Berry Berry Kix and Fruity Cheerios have all recently been the targets of false advertising lawsuits filed by three lawyers. But a judge may have ended this outbreak of cereal litigation by throwing out a case involving Cap'n Crunch's Crunch Berries.

The litigation appears to have been inspired in part by a January 2006 study in which the Prevention Institute, an Oakland, Calif., nonprofit, found that “nearly two-thirds of highly-advertised children’s food products with images or references to fruit on the package contained little or no fruit and were high in added sweeteners.”

Working as a team, attorneys Hal Hewell of San Diego, Cynthia C. Lebow of Santa Monica, and Howard Rubenstein of Aspen, Colo., have filed deceptive advertising suits involving 12 of the 25 products listed in the study as having minimal or no fruit.

Several of the cases sought changes in the labeling of products -– under California law, the defendants could be liable for statutory damages if they did not make the changes within 30 days.

But the fruit suits have not been fruitful (see table), the latest bust being the case of Janine Sugawara, a client of Hewell and Rubenstein, against PepsiCo, the manufacturer of Crunch Berries. The cereal's name and packaging, she alleged in a $5 million class action, “were likely to mislead and deceive a 'reasonable consumer'” because it actually “contains no actual berries of any kind.”

Granting PepsiCo's motion to dismiss with prejudice, U.S. District Judge Morrison C. England noted that “This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a 'crunchberry.'”

While the brightly-colored cereal balls on the box resemble berries, he said in a May 20 order, the box clearly states that it contains “sweetened corn & oat cereal” and “a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist.”

Other judges reached similar conclusions in dismissing cases against the makers of Froot Loops, Berry Berry Kix, Trix Cereal and Fruity Cheerios. “No reasonable consumer would view the trademark 'Froot Loops' name as describing the ingredients of the cereal,” U.S. District Judge Audrey B. Collins said in a September 2007 minute order.

But England's decision was particularly forceful, concluding that

it is simply impossible for Plaintiff to file an amended complaint stating a claim based upon these facts. The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense. The Court has no intention of allowing that to happen.

Plaintiff's counsel has filed a motion for reconsideration in which he insists it is plausible that the Crunch Berries packaging would be deceptive.

“Common sense and personal responsibility do not factor into the analysis, and for good reason,” Hewell says. “Common sense is not necessarily common, and both concepts are variable over time, and among individuals and groups. What passes for common sense to the 'exceptionally acute and sophisticated' reasonable consumer might not be readily apparent to reasonable consumer who is less so.”

In April 2008, an appeals court reinstated a Hewell client's case against Gerber Products that alleged its marketing of Fruit Juice Snacks for toddlers was deceptive. England said Sugawara's case is distinguishable in part because the Crunch Berries packaging does not contain "any images of actual fruit."

By Matthew Heller
6/7/09