Two consumers have alleged that Kellogg Co. markets promotions on the packaging of its products that end before the shelf life of the product. Seaman v. Kellogg Co., No. 20-5520 (E.D.N.Y., filed November 13, 2020). The complaint asserts that consumers rely on incentives listed on product packaging when deciding which product to purchase, but because the shelf life of the products extends beyond the expiration of the incentive, the products stay on store shelves longer than the length of the promotion and consumers purchase products relying on offers that they ultimately cannot use. “Where a shopper views a promotion such as described here, they will have no reason to scrutinize the fine print telling them when the promotion expires,” the complaint argues. “Reasonable consumers are not so innately distrustful of companies and expect that all aspect of consumable items, including promotions, are functional throughout their shelf-life.”

The plaintiffs argue that Kellogg could print fewer boxes with the promotional offer but “is incentivized to print more boxes with promotions than it will sell during the offer period because these offers increase sales of their products.” They list as an example an Eggo waffles offer for $5 off a purchase of three Crayola boxes that expired in September 2017 despite the waffles’ expiration date of October 2018. The plaintiffs seek class certification, injunctive relief, damages and costs for allegations of fraud, negligent misrepresentation and unjust enrichment as well as violations of North Carolina’s and New York’s consumer-protection statutes.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.