Popular breakfast brand Kellogg's is facing a lawsuit accusing the company of falsely advertising the strawberry content in its Frosted Strawberry Pop-Tarts.
The lawsuit is asking for the company to adopt more accurate labeling, and claims that damages from the false advertisement "exceeds $5 million."
The class-action lawsuit filed by plaintiff Anita Harris in late August claims that Kellogg's advertising is designed to "give consumers the impression the fruit filling contains a greater relative and absolute amount of strawberries than it does."
"Plaintiff bought the product because she expected it would have more of the named fruit ingredient," the lawsuit states. "Plaintiff wanted more than a 'strawberry taste,' which she nevertheless failed to receive … Plaintiff would not have purchased the Product if she knew the representations were false and misleading."
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The advertising highlighted in the lawsuit includes the product's labeling and advertising that praises the "timeless yet yummy" flavor of strawberries, as well as an online recipe on how to make strawberry shortcake. According to the lawsuit, this makes strawberries the "characterizing ingredient" in the product, but dried strawberries do not appear in the ingredient list until the "contains 2-percent or less" section, alongside other fruits like dried pears and dried apples.
"Strawberries are the Product's characterizing ingredient, since their amount has a material bearing on price or consumer acceptance, and consumer believe they are present in an amount greater than is the case," continues the lawsuit. "The Product’s common or usual name of 'Frosted Strawberry – Toaster Pastries,' is false, misleading, and deceptive because its filling contains a relatively significant amount of non-strawberry fruit ingredients – pears and apples – shown on the ingredient list."
The lawsuit also noted that the Frosted Strawberry Pop-Tarts include Red 40, a synthetic food dye, which makes the product's filling "look bright red, like it is only strawberries or has more strawberries than it does." The lawsuit claims that "without the added coloring, consumers would be suspect of a product labelled as 'Strawberry,'" since the filling would be a "more subdued tone," which could lead them to "inspect the ingredient list to determine the truth."
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"However, reasonable consumers are not so distrustful to think they will be misled when buying a well-known product like the Pop-Tarts from Kellogg's here," continues the lawsuit. The lawsuit compares Pop-Tarts to similar breakfast pastries from Walmart's Great Value brand and Dollar Tree's Clover Valley brand are "described as frosted strawberry" and include photos of strawberries, but "put customers on notice that they have less strawberry ingredients than customers would otherwise expect" by including a statement that the pastries are "Naturally & Artificially Flavored."
Spencer Sheehan, a New York attorney representing Harris, told TODAY Food that the goal of the lawsuit is to have Kellogg's label its product "in a more truthful and transparent manner."
"If it doesn’t have mostly strawberries, if it’s mostly pears, then you know, just call it pear Pop-Tarts," said Sheehan, who has recently represented clients in similar lawsuits involving King's Hawaiian Rolls and Kraft's Bagel Bites. "I don’t know why you have to call it strawberry if it’s a mix of pears and apples and strawberries."
Kellogg's did not respond to a request for comment from TODAY.
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