Class Claims Filed in California Against Cereal Maker for False Advertising

A California man who alleges that he was misled by the packaging and advertising for Cap’n Crunch with Cruncherries® has brought a putative class action against the cereal maker in federal district court. Werbel v. Pepsico, Inc., No. 09-4456 (N.D. Cal., filed September 22, 2009).

Alleging violations of California’s unfair competition and false advertising laws, intentional misrepresentation, breach of express and implied warranties, and violations of the Consumers Legal Remedies Act, the plaintiff claims that he and a class of California consumers were misled by representations that the product contained fruit. Yet, according to the complaint, “the only fruit content is a touch of strawberry fruit concentrate—twelfth in order on the ingredient list, just after partially hydrogenated soybean oil and ‘natural and artificial flavors,’ and just before malic acid.”

According to the complaint, the plaintiff “trusted the Quaker label because of the company’s long history of producing other wholesome breakfast cereals,” but learned that “many popular foods and beverages are marketed as if they are made with fruit, but actually contain little or no fruit at all.” He relies on a study published by the Strategic Alliance for Healthy Food and Activity Environments which purportedly concluded that “current packaging labels and advertising are misleading consumers about the nutritional value of some of the most popular foods and snacks.” The complaint also refers to a 1967 U.S. Patent and Trademark Office letter to the defendant refusing to approve a trademark application for Crunch Berries and stating, “The word BERRIES is considered either merely descriptive or deceptively misdescriptive of the good here and should be disclaimed apart from the mark shown.”

The plaintiff seeks orders enjoining the allegedly deceptive conduct, actual and punitive damages, attorney’s fees, costs, and interest.