Froot Loops® Packaging and Name Alleged to Be Deceptive
A putative class action has been filed against Kellogg USA alleging that, by calling its cereal “Froot” Loops® and including “pictures of brightly colored cereal made to resemble fruit” and actual fruit on product packaging, the company is deceiving the reasonable consumer who is led to believe the cereal contains fruit. Werbel v. Kellogg USA, No. 10-1660 (N.D. Cal., filed April 19, 2010). The named plaintiff relies on a Strategic Alliance for Healthy Food and Activity Environments study which purportedly revealed that this cereal, like many others, contains no fruit whatsoever despite packaging and advertising suggesting its presence.
The plaintiff seeks to certify a class of California consumers who purchased the product in the four years preceding the lawsuit’s filing; he alleges unlawful, unfair and deceptive advertising and promotion in violation of the state’s Business & Professions Code , intentional misrepresentation, breach of implied warranties, and violations of the Consumers Legal Remedies Act. The plaintiff seeks equitable relief, including an injunction to stop the company from making misleading product claims, restitution and disgorgement; attorney’s fees; costs, interest; and actual and punitive damages.
The named plaintiff is represented by Florida-licensed attorney Howard Rubinstein, who previously filed a consumer deception lawsuit in California against cereal makers for selling reduced sugar versions of their products. More details about that litigation appear in issue 120 of this Update.
