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A Juicy Lawsuit

Welch Foods is under fire for allegedly inferring that its fruit snacks are healthy, without actually stating that the snacks are healthy.

Photo by Sonson (Flickr).

Fruit snacks may not actually be part of a balanced diet, claims a class action suit filed in New York alleges that Welch’s Fruit Snacks are not a healthy treat, but rather merely junk food.

The fruit snacks are made by Promotion in Motion, a food manufacturing company that has a number of sweet treats, including Sun-Maid Raisins, in its product line.  Welch Foods does not actually appear to contribute any of its famous juice products to the fruit snacks, but rather allows Promotion in Motion to use its name.  The class action has named both companies, claiming that Welch’s is involved because it is responsible for how its name is used on products.

Plaintiffs claim that such deception is in violation of state and federal law, and that Welch Foods is responsible for tricking consumers into believe that the snacks were primarily made of fruit.

Welch’s Fruit Snacks boast that they are made with real fruit, have 100% (of the daily recommended allowance of) Vitamin C, and are also preservative and gluten free.  The suit alleges that these claims lead consumers to believe that the fruit snacks are healthier than other fruit snacks, when in reality the snacks are actually made up of 40 percent sugar.  Attorney for the plaintiff Stephen Gardner likened the product to M&Ms.

 

Plaintiffs Aliza Atik and Winnie Lau claim that such deception is in violation of state and federal law, and that Welch Foods is responsible for tricking consumers into believe that the snacks were primarily made of fruit.  Plaintiffs further contend that the added vitamins are not as beneficial as vitamins that occur naturally in real fruit, and that the snacks are mostly made of sugary syrup.  The plaintiffs do not seem to address that fruits in general tend to be high in sugar, or that parents could simply be personally responsible and choose not to feed their children fruit snacks.

Promotion in Motion responded to the allegations by stating fruit is in fact the first ingredient in the snacks and the labeling on the package allows consumers to make their own choices.  Like most food products in America, the fruit snack packaging does list the required-by-law nutritional information on the back, letting consumers read what the snacks contain and make personal choices as to whether the snacks are a proper substitute for real fruit.

The suit will need to be certified by a judge in accordance with Rule 23 of the Federal Rules of Civil Procedure in order to proceed.

This isn’t the first time Welch Foods has come under pressure of a lawsuit.

Welch Foods settled another lawsuit in 2011, after it was sued for claiming pomegranate juice was part of its white grape and pomegranate product, when there was a minimal amount of pomegranate in the finished juice.  The class action suit, brought in California, claimed that the juice bottles were deceptive because they led consumers to believe that the juice was heart-healthy.  Pomegranate juice was briefly trendy for its purported ability to lower the risk of heart disease.  Because Welch’s finished product lacked significant pomegranate juice, the product was not as healthy as many would have believed it to be.  The suit settled for $30 million, with Welch’s agreeing to send coupons out to customers for free juice.

Pom Wonderful LLC, the maker of POM pomegranate juice, also sued Welch Foods for the pomegranate claims.  In Pom Wonderful LLC v. Welch Foods, Inc., Pom sued Welch Foods for false advertising.  For the same reason as the other suit, Pom claimed that there was not enough pomegranate juice in the blend to allow Welch’s to advertising it as a pomegranate drink.  Although the court here agreed that Welch’s was in fact deceptively advertising the juice, the jury found that the advertising did not hurt Pom’s business.

CSPI is a watchdog group that goes after food companies who make claims that could mislead consumers. 

In 2012, The Center for Science in the Public Interest (CSPI) threatened suit against Welch’s, claiming that Welch’s “heart healthy” assertion was deceptive.  Welch’s 100% grape juice labels claimed that the beverage was beneficial to “Reward Your Heart.”  CSPI argued that the claim was “unsubstantiated” and was a violation of consumer protection laws, and that the juice provided the same health benefits as soda.

Welch’s countered that research had shown that concord grapes were proven to improve cardiovascular benefits, and “calorie for calorie” the juice was much healthier than soda.  CSPI’s threats do not appear to have materialized into an actual class action, and Welch’s still labels its concord juice as being heart healthy.

CSPI is a watchdog group that goes after food companies who make claims that could mislead consumers.  CSPI’s targets have included General Mills, Campbell Soup, and McDonald’s.  Coca-Cola has been the subject of CSPI’s litigation for years, primarily focusing on Vitaminwater.  CSPI claims that Vitaminwater does not reduce the risk of any type of disease, but rather promotes obesity through its high sugar content. Coca-Cola recently agreed to add “with sweeteners” on its drink labels as part of a settlement, but has spent a great deal of time fighting off copycat lawsuits.

The plaintiffs suing Welch’s and Promotion in Motion for the fruit snacks will have to prove that they believe they have been damaged by the product.

The basis for the deceptive advertising lawsuits is often grounded in Section 43(a) the Lanham Act, which forbids the “false representation in advertising concerning the quality . . .of goods.”  Those suing the various food companies are making arguments that although the products may not outright say on the labels that the ingredients are healthy, the use of words such as “real fruit” and “vitamins” lead consumers to believe that the products are health foods. To obtain standing, a person simply has to “believe that he or she has been damaged by such an act (referring to the deceptive advertising or labeling).”

Under this rule, the plaintiffs suing Welch’s and Promotion in Motion for the fruit snacks will have to prove that they believe they have been damaged by the product.  Thus, they will have to show that the label reading “real fruit” led them to believe that the product was healthy and somehow that belief, if proven to be false, affected them negatively.  For a class action to be successful, the plaintiffs will have to show that everyone in the class suffered a somewhat similar type of damage based on the belief that the snacks were healthy.

This is a large hurdle to overcome, and will likely not proceed to trial if the action is even certified.  Welch’s and Promotion in Motion will likely argue that nowhere on the package does it state that the product is healthy, and using real fruit should not lead one to believe that fruit snacks are a health food.

The plaintiffs will also have to prove that the added vitamins are less healthy than naturally occurring vitamins, and that the “100% Vitamin C” labeling again misleads consumers.  If this case does go to trial, the plaintiffs will have to call an expert to testify that vitamin-fortified foods are less healthy than foods with natural vitamins.

Often, these types of cases tend to settle so companies can avoid bad publicity.  The Food and Drug Administration is currently attempting to implement new nutrition labeling guides which will supposedly make it easier for consumers to decide which foods are healthy and which are simply junk.  In a sue-happy nation, this will likely not stop the flow of lawsuits, but may make it slightly more difficult for consumers to win them.

Paige Miles Feldmann, Managing Editor
About Paige Miles Feldmann, Managing Editor (20 Articles)
Paige Miles Feldmann is a 2016 graduate and served as the Managing Editor of the Campbell Law Observer for the 2015-2016 academic year. Originally from Erie, Pennsylvania, she graduated from Penn State with a finance degree. Following her first year of law school, she interned with the Clerk of Superior Court for Chatham County, the Wake County Family Court, and the Wake County Public Defender. She also competed on a Campbell Law Trial Team in the Buffalo-Niagara Mock Trial Competition. Paige worked with the Wake County District Attorney as an intern in the misdemeanor section during her third year.
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