Nathaniel Bodnar, a law clerk at Washington Legal Foundation, will be entering his second year at the George Mason University Antonin Scalia Law School this fall.

On July 15, the Southern District of New York dismissed with prejudice Russett v. Kellogg Sales Company, a case involving Pop-Tarts. Not surprisingly (especially for readers of my July 13 WLF Legal Pulse post), the ubiquitous Sheehan and Associates represented the plaintiff. The plaintiff argued that on-package statements for Whole Grain Frosted Strawberry Pop-Tarts created the false impression that the filling would contain “more strawberries than it does.” Sheehan clients have asserted this claim in numerous other cases. Just this year, the Southern District of New York dismissed the same claim with prejudice in March (Frosted Strawberry Pop-Tarts); the Northern District of Illinois dismissed it in March with leave to amend (unfrosted Strawberry Pop-Tarts); and the Southern District of Illinois dismissed the claim with prejudice in May (Frosted Strawberry Pop-Tarts). Sheehan’s complaint about Whole Grain Frosted Strawberry Pop-Tarts was a 67.9% match, on, with the Frosted Strawberry Pop-Tart complaint dismissed in May. So, frosted, unfrosted, whole-grain, not whole-grain, in the end was immaterial to the Sheehan clients. It was all about the strawberries.

In Russett, Judge Román properly differentiated the claim from the claim presented in Mantikas v. Kellogg. In that case, the Second Circuit vacated the trial court’s dismissal of a complaint that claimed that Kellogg had falsely represented its Whole Grain Cheez-It product as being primarily made with whole grain and remanded the case to district court. The Second Circuit found the claim to be plausible. The prominent “made with whole grain” statement on the front of the box created a false impression for reasonable consumers that the Cheez-Its would be made primarily with whole grain instead of primarily white flour. The ingredient list on the package’s side revealed that the product contained more white than whole-grain flour. Precedent dictates that reasonable consumers expect the ingredient list to confirm, not contradict, the representations on the front of the box. Thus, a correct ingredient list cannot save a defendant if the front of their product is misleadingly contradictory.

The Mantikas court noted that Mantikas differed from many other cases revolving around a “made with” claim on the front of the packaging. A critical factor in the Mantikas decision is that grain was the primary ingredient in a Cheez-It. Previous cases had involved secondary ingredients, where it was plainly unreasonable to expect the language “made with” indicated that the listed ingredient was the primary ingredient. The Second Circuit used Red v. Kraft Foods to illustrate this point, where the plaintiff had claimed that they expected crackers to contain a larger amount of vegetables than they really did. The court rejected this claim because “a reasonable consumer would ‘be familiar with the fact of life that a cracker is not composed of primarily fresh vegetables.’” In Matikas the court concluded that it’s reasonable to assume that a product “made with” a certain type of grain would indicate that the stated type of grain was the primary ingredient used because grain is the primary ingredient in a cracker.

Judge Román differentiates between the use of “strawberry” and the use of “made with whole grain” in Mantikas. First, the Pop-Tart packaging does not contain an indication that strawberry is the main ingredient and it does not have “made with strawberry” language akin to Mantikas. While the Pop-Tart packaging does say “Made with Whole Grain,” that doesn’t affect the analysis of whether the strawberry representation was misleading. With no “made with” connected to the strawberries, a reasonable consumer would understand that strawberry is the product’s flavor, which may or may not be made with natural strawberries.

Judge Román’s opinion should be the standard for future repetitive food-label litigation cases. In short order, the opinion demonstrated how the complaint was substantially similar to others that Sheehan & Associates had filed and that courts have dismissed and why the allegation of deception could not plausibly be true. Because the claim underlying Russett’s complaint had failed multiple times due to its implausibility, the court determined that amendment would be futile, and properly ordered the case closed.