In a class action filed in a federal court in California last week, plaintiff Alicia Spevak claims that the Super Mario snacks - which contain apple puree concentrate as the third entry on the ingredients list behind corn syrup and sugar - are “full of sugar” and “unhealthy, unnatural ingredients, chemicals and preservative additives”.
Reasonable consumers would "interpret ‘made with real fruit’ to mean that it contains whole fruit and not merely de minimis real fruit” alleges Spevak, who seeks to represent everyone that has bought Super Mario snacks in California since April 2009.
The ‘made with real fruit’ claims on the ads and the labels of the products - which also contain modified corn starch, citric acid, sodium citrate, ascorbic acid, natural and artificial flavors and the synthetic colors red #40, yellow #5, and blue #1 - are “misleading and deceptive” under California law, alleges Pevak.
CARU recommended Kellogg ditch 'made with real fruit' claim on Pop Tarts in 2010
In 2010, the Children's Advertising Review Unit (CARU) of the Council of Better Business Bureaus recommended that Kellogg ditch the phrase 'made with real fruit' on its Pop Tarts on the grounds that they contained only 2-6% fruit, whereas the implied claim was that they contained “substantial amounts of fruit”.
However, Kellogg said CARU lacked jurisdiction over the matter as its remit is restricted to advertising “primarily directed to children” - whereas Pop Tarts, claimed Kellogg, were not advertised primarily to kids.
General Mills also under fire over Made from Real Fruit claims
Kellogg is not the first company to come under fire over claims about fruit snacks targeting kids.
Two years ago, General Mills was hit with a class action lawsuit filed by the Center for Science in the Public Interest (CSPI) and law firm Reese Richman accusing it of presenting Fruit Roll-ups, Fruit Gushers and Fruit by the Foot as healthful when they are in fact “little better than candy”.
While strawberry Fruit Roll-Ups contain pear from concentrate, fruit pectin and natural flavors, the ‘Made from Real Fruit’ claim was nevertheless misleading, CSPI director of litigation told FoodNavigator-USA.
“The core of the lawsuit is about Gen Mills deliberately deceiving parents by tricking them into believing that these junky, high-sugar foods are good snacks to feed their kids, which violated consumer protection laws.
“The fact that General Mills may have told the truth about certain ingredients does not serve as an excuse for its campaign of deception.”
The case is Spevak v. Kellogg Company, No. 3:13-cv-02767-EDL filed June 14, 2013 in the US district court in the Northern District of California. Two similar lawsuits were also filed on June 14: Ryan Barnes v. Kellogg Co., No. 13-2768 (re. SuperMario fruit snacks), and Juliana Ford v.Kellogg Co., No. 13-2770 (re. Pop Tarts). Each plaintiff is represented by Benjamin Lopatin in the Law Offices of Howard Rubinstein.
Kellogg was unavailable for comment as this article went to press.