Tort for Tarts
Kelloggs appears to be headed back to court. Previously, they settled a class action lawsuit for $13 million because they labeled their cereals as “heart healthy” or “lightly sweetened” when the plaintiffs alleged they contained excessive amounts of sugar. It’s not clear to me what is excessive in an individual product, but certainly our consumption of sugar is probably obsessive. According to some, men should consume less than 9 teaspoons a day, women less than 6. On average, we are consuming 153 pounds per year of sugar (an average of about 46 teaspoons a day). Oddly enough, the FDA’s recommendation (given by the % Daily Value) is 50 grams of added sugar a day.
It hasn’t stopped there for Kelloggs. The current lawsuits, including one by New York’s Elizabeth Russett, alleges that the Whole Grain Strawberry Toaster is composed of more pears and apples than strawberries. In other words, Kelloggs was sneakily trying to put in slightly healthier fruits without informing the consumers about this underhanded trick.
Well, actually she just said that the picture was misleading. Stacy Chiappetta on behalf of herself and others in the Northern District of Illinois and Kelvin Brown, also from New York, claim that the picture on the front makes it appear as though it’s only strawberries. Of course, if you read the ingredient label, it says, “dried strawberries, dried pears, dried apples.”
I hope it goes to court. I would love to see the wailing and the weeping as each plaintiff talks about how Pop tarts are all that is important in life and now they have discovered the sordid truth. Of course, they have no option, they must continue to buy their tarts. After all, as Paula Poundstone says, they are wonderful because of the “rich, tasty, goodness.”
The Illinois Consumer Fraud and Deceptive Business Practices Act states that it is unlawfulto market a product with “false pretense, false promise, misrepresentation of the concealment, suppression or omission of any material fact.” Under that standard, there should be no shortage of court business taking on beauty creams that make your skin firmeror instantly make you look younger.
What is missing in all of this is whether or not it is rational to believe that the picture is misleading when they clearly state the ingredients. The side issue may be whether the plaintiffs are really concerned about the healthiness of the tarts.
I’m not an attorney but this seems to fall into the frivolous category. Here’s an example of a similar frivolous case:
In 1993, Richard Overton sued Anheuser-Busch for false advertising after he drank a 6-pack of Bud Light and the beer failed to produce visions of beautiful women on a sandy beach (as the advertisement he had seen seemed to suggest). He sought $10,000 in damages, claiming that Bud Light’s deceptive marketing caused him emotional distress.
Maybe the states should leave food labeling and advertising to the FDA and FTC, respectively. After all, the FDA was able to order a Massachusetts Granola firm to ”cease and desist” listing “love” in their ingredient list.
What will happen to the plaintiffs and their attorney’s if Kellogg’s says, “Because of these lawsuits and the damage to our brand, after nearly 50 years we are removing Pop tarts from our products. I suspect they would incur the fury of millions of Pop Tart lovers who buy 2 billion of these nutritious gems each year.
Both the plaintiffs and their lawyers would probably have to go into hiding but what else can you expect when you start a tort for tarts.