Court Doesn’t Bite on Strawberry Pop-Tart Alleged Deception

(March 9, 2022) The box uses the word “strawberry” with a picture of half a strawberry and a Pop-Tart oozing red filing. However, no reasonable consumer could conclude that the filling contains a certain amount of strawberries, a U.S. District Court judge ruled. As a result, the package is not deceptive.

               A consumer filed a class action against Kellogg Sales Company, arguing the company’s Unfrosted Strawberry Pop-Tarts packaging was misleading because it gives “consumers the impression the fruit filling contains only strawberries and/or more strawberries than it does,” thus violating the Illinois Consumer Fraud and Deceptive Business Practices Act and the Magnuson-Moss Warranty Act. The Pop-Tart filling contains more than just strawberries. It also contains dried pears, dried apples, and food dye “red 40,” among other ingredients. The Plaintiff, Stacy Chiappetta, argued that, but for the misrepresentations, she would not have purchased the Pop-Tarts or would have paid less.

               Kellogg filed a motion to dismiss arguing the package does not represent that the Pop-Tarts contain no fruits other than strawberries, that the filling contains a specific amount of strawberries, or that the filling includes only a “de minimis amount of other fruits.” The court agreed with Kellogg, finding “no reasonable consumer could conclude that the filling contains a certain amount of strawberries based on the package’s images and its use of the term ‘Strawberry.’”

As to the plaintiff’s claim for violation of the Magnuson-Moss Warranty Act, the court ruled that the plaintiff did not identify any “untruths on the packaging.” The court observed that the packaging neither states anything about the amount of strawberries in the product nor that the filling only contains strawberries.

Stacy Chiappetta v. Kellogg Sales Company, U.S. Dist. Court, ND Illinois, No. 21-CV-3545, issued March 1, 2022.