A proposed consumer class action has been filed against Kashi Sales, LLC for allegedly deceptively labeling its “Ripe Strawberry Soft Baked Breakfast Bars.”

The thrust of the complaint is that the bars are being marketed as a so-called “healthy indulgence” — a desirable snack that is also healthy—by conspicuous promotion of healthy ingredients on the product labels, including strawberries, oats, and honey, even though these ingredients are allegedly present in small quantities. The packaging largely has a red background and includes pictures of fresh, ripe strawberries.  The front of the package also states that the bars are “made with wildflower honey” while the back states that the bars are made with a “[l]ove for simple ingredients, like strawberries and whole grains.”

The lawsuit alleges that, in contrast to the prominent strawberry representations on the packaging, the ingredient list suggests that pear and apple ingredients predominate over the strawberry ingredient and that these ingredients are less desirable than strawberries, which have many health benefits and are more expensive. In particular, the primary ingredient in the bars, “strawberry filling,” is in fact composed of more apple and pear than strawberry; the only strawberry (sub)ingredient is “strawberry puree concentrate” which is the 5^th most predominant (sub)ingredient in the strawberry filling, after both pear juice concentrate and apple powder. The complaint also suggests that the “made with” honey claim is misleading because the product contains more sugar than honey.

As a reminder to our readers, there is no private right of action to enforce the food labeling regulations in Title 21 of the Code of Federal Regulations, although the regulations are frequently invoked in deceptive advertising lawsuits as evidence of consumer deception. However, interestingly this lawsuit does not mention the flavor labeling regulation (21 C.F.R. § 101.22) and only in passing references alleged labeling violations; it alleges that the product’s name runs afoul of 21 C.F.R. § 101.18(b) because it only references strawberry, even where pears and apples are included, and also alleges that the percentage of strawberries should have been disclosed per 21 C.F.R. § 102.5(b).