Consumer Fraud Claims Narrowed Against Fruit Roll-Ups® Maker

A federal court in California has dismissed several of the claims brought
in a putative class action against General Mills, alleging that the company
misleads consumers with the package labeling for its Fruit Roll-Ups® and Fruit
by the Foot® products. Lam v. General Mills, Inc., No. 11-5056 (N.D. Cal., order entered May 10, 2012). Additional details about the litigation,
in which the Center for Science in the Public Interest is representing the
plaintiffs, appear in Issue 414 of this Update.

The court agreed with General Mills that label statements about the products’
flavorings, i.e., “naturally flavored” and “fruit flavored,” conform to federal law,
and thus state-law claims alleging that these statements are misleading or deceptive are preempted. In this regard, the court noted, “the 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.” All claims based on these statements
were dismissed with prejudice. The court also agreed with General Mills that
labeling its products as “gluten free” is not misleading, rather “[t]he 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.”

As for the company’s use of the statement “made with real fruit,” the court agreed with the plaintiff that, in conjunction with the word “strawberry” in large type on nearly every package surface and the “fanciful depiction of the products” as a type of fruit leather, “might lead a reasonable consumer to believe that product is made with real strawberries, not pears from concentrate.” And while General Mills may list the actual ingredients in “small print on the bottom of the side panel,” the court could not conclude at the pleading stage “that a consumer should be expected to look beyond ‘made with real fruit’ in order to discover the truth in small print.” The court cited Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008), as support for this assertion, stating, “Likewise, here, the Fruit Snacks’ ingredients list cannot be used to correct the message that reasonable consumers may take from the rest of the packaging: that the Fruit Snacks are made with a particular type and quantity of fruit.”

The court dismissed with prejudice the plaintiff’s express and implied
warranty claims which were based on allegations that the company
warranted its products as healthful. She failed to point to any statement
indicating that the products are healthful and neither challenged the truth of
any of the packaging statements nor alleged that the products “are not proper
or safe for consumption as food.” The plaintiff was given 30 days to amend her
complaint to more specifically plead her claims in relation to the company’s
“other similar products.”