In an August 5 report, US Magistrate Judge Vera M. Scanlon advised a district court in New York to grant in part, and deny in part, the defendants’ motion to dismiss a false advertising lawsuit alleging that Welch’s 'made with real fruit' fruit snacks are effectively candy masquerading as healthy snacks.
In the complaint* filed in September 2015, plaintiffs Aliza Atik and Winnie Lau argued that the snacks – which they say contain “mostly a combination of corn syrup, sugar, modified corn starch, juice from concentrate, artificial flavors and dyes” – contain “minimal amounts” of the “vibrantly depicted” fruits on the label and “are no more healthful than candy”.
Meanwhile, the vitamins advertised on the front of the pack are added to the snacks, and are not, as is implied, derived from the fruit, it says, a violation of the ‘jelly bean rule' [the FDA does not consider it appropriate to fortify “snack foods such as candies and carbonated beverages"].
However, Promotion in Motion, which manufactures and markets the snacks under license for Welch Foods, says its stands behind all of its products and labels, adding that, “It is a fact that fruit, whether in the form of juices or more recently purees, has always been the first ingredient in Welch’s Fruit Snacks.”
Judge: The Fruit Snacks packaging is arguably more deceptive than the packaging in Gerber fruit juice snacks
While Judge Scanlon rejected several of the claims in the lawsuit, however, she said the plaintiffs had plausibly argued that reasonable consumers could be misled by the labels: “Fruit Snacks products are titled simply ‘fruit snacks’ and contain images of real, whole fruit, potentially signaling to consumers that the product primarily consists of those ingredients.
“A consumer would not be unreasonable as a matter of law in drawing the conclusion from this advertising that the food inside will contain significant amounts of the fruit pictured, and will be as healthy as the depicted fruit.
“Indeed, the Fruit Snacks packaging is arguably more deceptive than the packaging in Williams [Williams v. Gerber Products**], as that packaging does include images of the actual gummy product, while Fruit Snacks packages only contain images of fruit.”
The only ingredient images on the packaging are of fruit
She acknowledged that a judge in a similar case (Red v Kraft Foods) over roasted vegetable Ritz crackers had concluded that “a reasonable consumer will be familiar with the fact of life that a cracker is not composed of primarily fresh vegetables.”
But the Welch's packaging is different, she insisted: “The [Ritz crackers] packaging… made it clear to consumers that they were purchasing a box of crackers, which the ordinary person would know are not generally made of vegetables… The Fruit Snacks packaging, on the other hand, states that the product is called ‘Fruit Snacks,’ [and] that it is made with real fruit… The only ingredient images on the packaging are of fruit.”
Welch’s: Our snacks are made from fruit (juices, and more recently, purees)
In an August 19 filing, however, attorneys representing Welch’s and Promotion in Motion argue that "a review of the complete product packaging, as a whole, establishes that no reasonable consumer would be misled by the representations.”
They also point out that in a similar case (Manchouck v. Mondeléz Int’l), the court “dismissed plaintiff’s claims regarding the representation ‘made with real fruit’ [on fruit Newton cookies] because the products at issue did contain real fruit in the form of fruit puree.”
In his order tossing the fruit Newtons case, US district judge William Alsup said it “strains credibility” to think reasonable consumers would feel duped by the 'made with real fruit' claims, adding: "It is ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton.”
*The case is Atik and Lau et al vs Welch Foods Inc., a cooperative, and the Promotion in Motion Companies Inc No. 1:15-cv-05405 filed in the eastern district of New York.
**An oft-cited ninth circuit opinion in Williams v Gerber Products (over Gerber’s fruit juice snacks) states that: “We do not think that the FDA requires an ingredients list so that manufacturers can mislead consumers and then rely on the ingredients list to correct those misinterpretations and provide a shield for liability for the deception.”