Calling it “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,” a federal court in California has dismissed without leave to amend consumer fraud claims against the company that makes Nabisco strawberry and raspberry Newton cookies. Manchouck v. Mondeléz Int’l Inc., No. 13-2148 (U.S. Dist. Ct., N.D. Cal., decided September 26, 2013).

The court determined that the plaintiff had Article III standing without alleging physical injury because this is not the sole measurement of injuryin- fact and the plaintiff alleged that she had paid a premium price for the products which she would not have purchased “at that price point absent the alleged misstatements.” The court agreed with the defendant, however, that the plaintiff had failed to meet the plausibility pleading standard set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009).  

According to the court, “Here, the complaint alleges that a reasonable consumer would think that Newtons ‘made with real fruit’ exclude fruit purée. This strains credibility. First, the complaint does not dispute that the cookies contain real fruits in purée form. Second, even the most narrow definition of ‘real fruit’ does not exclude fruit that has been strained or blended into puréed form. Third, the packaging that said, ‘made with real fruit,’ also prominently displays a depiction of the cookies’ puréed fruit filling. Fourth, the amended complaint admits that the list of ingredients on the packaging serves notice to consumers that the products contain, ‘Raspberry Purée’ and ‘Strawberry Purée’ respectively.” The complaint also apparently failed to allege why the puréed forms of fruit are no longer “real fruit.”