The suit, filed Oct. 19 in the Southern District of New York, is the latest in a series of class-action suits against Kellogg Sales Co. for variations of the same allegation, namely that it misrepresents the ingredients of Strawberry Pop-Tarts in marketing and packaging to sell them at a premium price.
“The Product’s common or usual name of ‘Whole Grain Frosted Strawberry Toaster Pastries,’ is false, deceptive, and misleading, because it contains mostly non-strawberry fruit ingredients,” the suit alleges.
In a statement to The Post, a Kellogg spokesperson said that the company does not comment on pending litigation, and that “the ingredients in and labeling of all of our Pop-Tart products fully comply with all legal requirements.”
The plaintiff, Elizabeth Russett of Dutchess County in New York, demanded a jury trial and $5 million in compensation under the Class Action Fairness Act. She is represented by attorney Spencer Sheehan of Sheehan & Associates, the same firm that is representing another plaintiff in New York and one in Illinois who also accuse Kellogg of misleading them into thinking Strawberry Pop-Tarts contain more strawberries than they actually do.
Sheehan is known to frequently file lawsuits against major food companies. Law Street Media, a legal news service owned by legal software provider Fastcase, analyzed fraud cases filed in the United States since 2019 and found that Sheehan filed two to three fraud suits per week on average in the first few months of 2021. His firm filed the most food-related fraud lawsuits in federal courts of any firm in the past two years, according to Law Street. Sheehan told the publication, “I lose a lot more than most people.”
Sheehan did not immediately respond to a request for comment from The Post.
Russett’s complaint alleges that Strawberry Pop-Tarts contain more pears and apples than strawberries, and that the amount of strawberry they contain “is insufficient not merely to provide the nutrient benefits of strawberries but to provide a strawberry taste.” According to the suit, Kellogg uses “vegetable juice for color” and “paprika extract color” to give Strawberry Pop-Tarts their vivid red coloring.
The complaint alleges that the company charges a higher price that consumers would likely refuse to pay if they knew how few strawberries were in the Pop-Tarts, citing data from the United States Department of Agriculture which shows that strawberries are almost 50 percent more expensive than pears.
“Strawberries are the world’s most popular berry fruit,” the complaint states, adding that Russett, the plaintiff in the case, “likes strawberries for the same reason they are America’s number one berry fruit.”
The complaint focuses on Whole Grain Strawberry Pop-Tarts because it argues that for health-conscious consumers seeking to add more fiber to their diet, the product label’s “relatively truthful ‘whole grain’ statements create expectations that other statements will be truthful,” namely that the product contains mostly strawberries.
Consumers’ expectations about what is in their food are changing as public concerns grow over animal welfare and the environmental impact of agriculture — and as more becomes known about how what we eat impacts our health.
Former first lady Michelle Obama was an outspoken advocate for healthier eating and helped lead the charge to overhaul nutritional food labels in the United States.
During the pandemic, the FDA temporarily loosened some of those rules to ease food supply chain bottlenecks.
Sheehan told the Wall Street Journal he wants Kellogg to change its labeling.
“Nobody’s saying that you expected to get everything from a strawberry. You’re not eating a fresh strawberry, obviously,” Sheehan told the Journal. “But if you’re going to call it strawberry, you either ought to have all strawberries in there or just call it something else.”
This report has been updated.