Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: “Made with real fruit” not a deceptive description of cookies containing fruit puree, (Sep 27, 2013)

By Tobias J. Gillett, J.D., LL.M.

A purchaser of Newton cookies failed to allege false advertising, deceptive business practice, and California Consumers Legal Remedies Act (CLRA) claims against the cookies’ manufacturer over their packaging’s claim that the cookies were “made with real fruit” when they actually contained “mechanically processed fruit puree,” the federal district court in San Francisco has ruled (Manchouck v. Mondelez International Inc., September 26, 2013, Alsup, W.).

California resident Monique Manchouck purchased strawberry and raspberry Newton cookies manufactured by Mondelez International Inc., doing business as Nabisco. In her lawsuit, Manchouck alleged that Nabisco advertised the cookies as “made with real fruit” when they merely contained “mechanically processed fruit puree, which is not ‘real fruit.’” She asserted claims for unfair and fraudulent business practices, unlawful business practices, false and misleading advertising, and violations of the CLRA. Nabisco filed a motion to dismiss.

Article III standing. Manchouck alleged an injury sufficient to confer Article III standing, even though she did not allege that she suffered physical injury from consuming the cookies, the court concluded. “Physical harm” was “not the sole measurement of injury-in-fact,” and she alleged she would not have paid as much for the cookies had she known they were made with mechanically processed fruit puree, an injury sufficient to meet the injury-in-fact requirement for Article III standing.

Failure to state a claim. However, Manchouck failed to allege a plausible claim, according to the court. Manchouck’s claims were evaluated under the “reasonable consumer” standard, under which she had to show that “members of the public are likely to be deceived.”

Manchouck did not plausibly allege “why the statement ‘made with real fruit’ would not include mechanically separated fruit puree,” in the court’s view. The court cited other California district court food labeling decisions that had dismissed similar food labeling claims at the pleading stage. Here, the claim that a reasonable consumer would believe that “made with real fruit” excluded fruit puree “strain[ed] credibility,” according to the court. The court noted that the complaint did not dispute that the cookies contained real fruits in puree form, and that “the most narrow definition of ‘real fruit’ does not exclude fruit that has been strained or blended into pureed form.” Moreover, the cookies’ packaging displayed a depiction of the pureed fruit filling, and the list of ingredients included “Raspberry Puree” and “Strawberry Puree” respectively.

“It is ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton,” the court observed.

The court distinguished the present case from cases cited by Manchouck, noting that those decisions involved products that claimed to include fruits that they did not actually contain, while the Newtons did contain the fruits described on their packaging. Therefore, the court dismissed Manchouck’s complaint without leave to amend.

The case is No. C 13-02148 WHA.

Attorneys: Benjamin Michael Lopatin (The Law Offices of Howard W. Rubinstein, P.A.) for Monique Manchouck. Kenneth Kiyul Lee (Jenner & Block LLP) for Mondelez International Inc.

Companies: Mondelez International Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews