• As discussed here, a proposed consumer class action was filed in May of 2021 against Kashi Sales, LLC for allegedly deceptive labeling of its “Ripe Strawberry” Soft Baked Breakfast Bars.  According to the lawsuit, the strawberry filling in Kashi’s breakfast bars is made predominately of pear juice concentrate, followed by tapioca syrup, cane sugar, apple powder, and then strawberry puree concentrate.  Among other claims, the lawsuit alleges that the bars’ labeling misrepresents that the filling would contain more strawberry than other fruit ingredients.

• On September 8, 2022, a judge in the U.S. District Court for the Southern District of Illinois ordered that consumer fraud and unjust enrichment claims may proceed over the strawberry content of Kashi’s “Ripe Strawberry” Soft Baked Breakfast Bars because “Ripe Strawberry” is subject to different plausible interpretations and Kashi’s packaging further contributes to the plaintiff’s reasonable interpretation.  Packaging features cited by the judge include: an ingredient callout that highlights only strawberries and whole grains, pictures only of strawberries, and pictures showing the filling, which the plaintiff alleges is made to look red by using ingredients other than strawberries.  The judge granted Kashi’s motion for dismissal of the plaintiff’s remaining claims, including all claims concerning the statement “made with wildflower honey.”  The judge found it “fanciful” that reasonable consumers would be deceived into thinking that the primary sweetener in fruit-filled bars is honey.

Nicholas Prust and Frederick Stearns also contributed to this article.