“Wildberry Acai” Toaster Pastries Lack Enough Acai, Complaint Alleges

A consumer has filed a putative class action alleging that Nature’s Path Foods USA Inc. misleads consumers by marketing the filling of its Wildberry Acai Toaster Pastries as containing high levels of acai berries despite containing more apples, raspberries, blueberries and other fruits. Louis v. Nature’s Path Foods USA Inc., No. 19-2584 (E.D.N.Y., filed May 1, 2019). The complaint features an image of the front and back labels, alleging that acai berries account for 45 percent of the berries shown in packaging images, and the plaintiff asserts that the “use of the term ‘acai’ in the Product name and the numerical superiority of the acai berries depicted relative to other berries cause a reasonable consumer to expect the Products contain more acai berries than other identified and named fruit ingredients.”

The plaintiff also alleges that the ingredient list includes a number of fruits—apples, blueberries, strawberries and others—in whole form but includes only “acai powder,” which “is made through concentrating and pasteurizing fresh juice, mixing it with a carrier to ensure stable drying and feeding it through a spray dryer”; as a result of “the high heat and fast evaporation, antioxidant activity and flavor compounds are significantly diminished.” For alleged violations of California’s consumer-protection statutes as well as negligent misrepresentation, fraud, breach of warranties and unjust enrichment, the plaintiff seeks class certification, injunctions, restitution, damages and attorney’s fees.