Russett v. Kellogg Sales Company

Background

Elizabeth Russett brought a proposed class action against Kellogg Sales Company concerning Kellogg’s Whole Grain Frosted Strawberry Pop-Tarts. The front of the packaging used the words Frosted Strawberry, showed half of a fresh strawberry, showed a Pop-Tart with bright red filling, and stated Made with Whole Grain.

Russett alleged that the packaging was misleading because the product contained less strawberry than consumers would expect and contained other fruit ingredients, including dried pears, dried apples, and dried strawberries. She also alleged that vegetable juice and paprika extract used for coloring made the product appear to contain more strawberry than it did. Russett alleged that she purchased the product in New York, relied on the labeling, and would not have bought it—or would have paid less—if she had known about the alleged misrepresentations.

Claims and Motion

Russett asserted claims under Sections 349 and 350 of the New York General Business Law, state consumer-fraud laws, express and implied warranties, the federal Magnuson-Moss Warranty Act, negligent misrepresentation, common-law fraud, and unjust enrichment.

Kellogg moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. Kellogg alternatively sought dismissal of Russett’s request for injunctive relief under Rule 12(b)(1), which concerns the court’s subject-matter authority. Russett opposed the motion.

Court’s Analysis

For the New York consumer-protection claims, the court explained that Russett had to plausibly allege consumer-oriented conduct, a materially misleading act or practice, and injury caused by that conduct. The court focused on whether the packaging was likely to mislead a reasonable consumer.

The court held that the packaging, viewed as a whole, did not make a materially misleading representation. A reasonable consumer would not read the product’s name, strawberry image, and red filling as representing that fresh strawberries were the sole fruit ingredient, that strawberries made up a particular amount of the filling, or that strawberries were the main ingredient. The court also concluded that the words Made with Whole Grain referred to whole grain, not to the strawberry content. The red coloring likewise did not plausibly imply the presence, absence, or specific amount of strawberries.

Because Russett’s remaining claims all depended on the same alleged deception in the product’s packaging, the court dismissed those claims after finding no materially misleading representation. The court stated that it did not need to reach Kellogg’s other arguments.

Leave to Amend and Disposition

The court denied Russett’s request for permission to amend the complaint. It concluded that, based on the packaging and ingredient list, any amendment would be futile. The court granted Kellogg’s motion to dismiss the complaint, directed the Clerk to terminate the motion, and closed the case. The opinion does not state that the dismissal was with or without prejudice. The court also expressly stated that it did not undertake a Rule 12(b)(1) analysis because it dismissed the complaint under Rule 12(b)(6).