Brown v. Kellogg Sales Company

Background

Kelvin Brown brought a proposed class action against Kellogg Sales Company concerning “Frosted Strawberry Pop-Tarts.” Brown alleged that the front packaging—particularly the words “Frosted Strawberry,” an image of half a fresh strawberry, and an image of dark-red fruit filling—gave consumers the impression that the filling contained more strawberries than it did. He also alleged that the front label did not disclose the presence of pears and apples, which appeared in the ingredient list, and that red food coloring made the filling appear to contain more strawberries.

Brown asserted claims under sections 349 and 350 of the New York General Business Law, negligent misrepresentation, breach of express warranty, breach of the implied warranty of merchantability, violations of the Magnuson-Moss Warranty Act, fraud, and unjust enrichment. He sought injunctive relief, damages, statutory damages, and attorneys’ fees. Kellogg moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), which address subject-matter jurisdiction and whether a complaint states a legally sufficient claim.

Court’s Analysis

The court held that Brown did not adequately allege that the front label was materially misleading to a reasonable consumer. It reasoned that the label did not state or imply that strawberries were the only fruit ingredient, specify a quantity or proportion of strawberries, or promise nutritional benefits derived exclusively from strawberries. The court also viewed “Frosted Strawberry” as describing the product’s flavor rather than promising that strawberries were the sole source of the flavor.

The court distinguished cases involving labels that expressly claimed a product was “made with” a particular ingredient or specified the amount of that ingredient. It also concluded that the image of a strawberry, viewed together with the entire label and the nature of the product as a frosted toaster pastry, would not lead a reasonable consumer to expect fresh strawberries to be the sole ingredient. The court noted that Brown did not allege that the product lacked strawberries or failed to taste like strawberries.

The court further held that, even if the front label created some ambiguity, the ingredient list would resolve it. The ingredient list identified strawberries as the first fruit ingredient and also disclosed pears and apples. The court separately stated that Brown lacked standing to seek injunctive relief because, after learning of the alleged deception, he was unlikely to face a future imminent injury from purchasing the product.

Because Brown failed to plead a materially misleading representation, the court dismissed his other claims, which were based on the same alleged deception. The court did not reach Kellogg’s other arguments. The opinion also states that Brown did not defend his theory concerning red food coloring in his opposition papers and therefore treated that theory as abandoned.

Disposition

Judge Andrew L. Carter, Jr. granted Kellogg Sales Company’s motion to dismiss the First Amended Complaint. The court denied Brown’s request for leave to amend, finding that amendment would be futile based on the packaging, ingredient list, and reasoning in the opinion. The Clerk was directed to terminate the case. The opinion does not state that the dismissal was with or without prejudice.