There’s a lawyer that’s making a name for himself for what’s being reported as a historic spike in the number of class action lawsuits filed against food and beverage companies. His name is Spencer Sheehan, and according to NPR, in recent years the New York-based litigator has filed more than 400 such lawsuits targeting products throughout the grocery store over what he says are misleading claims on packaging and advertising.

Most recently, he’s got Kellogg’s Pop-Tarts in his crosshairs, as his new lawsuit is claiming damages over what it calls “deceptive” marketing by Kellogg’s.

The suit calls into question the ingredients in the popular line of pastries. The plaintiff he’s representing is New York resident Elizabeth Russett, and is demanding a jury trial and $5 million dollars from the brand owner. Russett is accusing Kellogg’s of misleading claims on the packaging, specifically in regard to a misrepresentation of the ingredients listed on Strawberry Pop-Tarts packaging and marketing materials.

The suit claims that the brand owner is misleading consumers into thinking the product contains more strawberries than they actually do. According to the lawsuit, “The product’s common or usual name of ‘Whole Grain Frosted Strawberry Toaster Pastries,’ is false, deceptive, and misleading, because it contains mostly non-strawberry fruit ingredients.”

Allegations in the complaint point out that Strawberry Pop-Tarts contain more pears and apples than strawberries, and the amount of strawberries actually in the product “is insufficient not merely to provide the nutrient benefits of strawberries but to provide a strawberry taste.”

The Washington Post reports, “Kellogg uses ‘vegetable juice for color’ and ‘paprika extract color’ to give Strawberry Pop-Tarts their vivid red coloring, according to the lawsuit, and it alleges that the company charges a higher price than consumers would likely refuse to pay if they knew how few strawberries were in the Pop-Tarts, citing data from the United States Department of Agriculture, which shows that strawberries are almost 50% more expensive than pears.”

Sheehan’s complaint against Kellogg states, “Strawberries are the world’s most popular berry fruit,” and Russett, the plaintiff in the case, “likes strawberries for the same reason they are America’s number one berry fruit.” The complaint focuses on Whole Grain Strawberry Pop-Tarts because it argues that for health-conscious consumers seeking to add more fiber to their diet, the product label’s “relatively truthful ‘whole grain’ statements create expectations that other statements will be truthful,” namely that the product contains mostly strawberries,” according to The Washington Post.

In response, a spokesperson for the brand said Kellogg’s does not comment on pending litigation, and “the ingredients in and labeling of all of our Pop-Tart products fully comply with all legal requirements.”

The Pop-Tart case is one of many similar lawsuits filed by Sheehan. The lawyer continues to go after the biggest food brand owners, accusing them of marketing their products as being healthier than they actually are. This is especially notable in today’s retail climate, where consumers are reportedly showing increased interest in their overall health, including food product origins and ingredients.

It’s all in a day’s work for Sheehan. NPR reports that he files around three lawsuits a week. Previously, he’s taken a special interest in targeting brands marketing vanilla-flavored products such as soda, soy milk, yogurt and ice cream. If the food or drink that is said to be vanilla is in fact made with synthetic vanilla or other flavors, or instead of natural vanilla, it’s on his radar.

Sheehan stresses that although the cases he takes can be lucrative, to him, it’s not about the money but more so about keeping Big Food honest. “When something is regulated, there should be less space for companies to walk around and try to weasel around. Hopefully they fix their labeling to truthfully represent what’s in the product.”As in the Strawberry Pop-Tart case, he focuses on what’s known as the “price premium theory,” which says that products are sold at higher prices than they would have otherwise commanded had the companies marketed them honestly.

Class action lawsuits against food and beverage companies are up more than 1,000% since 2008. The cases are creating headaches for food and beverage companies while gaining praise from consumer advocacy groups.Sheehan actively pursues such cases, and even appeals to the masses for lawsuit possibilities. He told NPR, “Like when the police set up a tip line, 95% of the tips they’re going to receive are garbage from people that don’t have anything, but there may be a good one in there,” he says. “I try to not overlook things that might have some value.”

NPR reports, “He filed suit against Frito-Lay alleging it didn’t use enough real lime juice in its ‘hint of lime’ Tostitos. He accused Coors of suggesting its pineapple-and-mango-flavored Vizzy Hard Seltzers are sources of Vitamin C ‘nutritionally-equivalent’ to actual pineapples and mangos. He said Snack Pack pudding – which is advertised as being ‘made with real milk’ – misled consumers because it is made with fat-free skim milk.”

Kellogg’s has asked for the Pop-Tart case to be dismissed. “Kellogg’s reference to one ingredient (strawberries) on the labeling of Frosted Strawberry Pop-Tarts does not plausibly suggest that strawberries are the only fruit in the product or imply that they are present in a greater amount than they are,” writes the company’s lawyers.

Danger: Mislabeled Cannabis Products
Consumers in the state of Oregon thought they were ingesting CBD drops, but the products contained THC – the psychoactive compound in marijuana – and have been recalled.

Reporting on the story for the Cannabis Business Times, Melissa Schiller notes that the mislabeled cannabis products have resulted in hospitalizations and lawsuits in Oregon. The recall was issued by the Oregon Liquor and Cannabis Commission (OLCC) on September 21 for Cura CS, LLC and sold under the company’s Select brand. According to a press release from the OLCC, the product was labeled as a hemp-derived CBD tincture but contained “undisclosed levels of THC.”

The OLCC then expanded the recall to include a Select tincture that was labeled as containing 1,000 mg of THC because the drops do not actually contain any detectable THC.

Schiller writes that the OLCC told the news outlet The Chronicle that 13 people reported ingesting the mislabeled drops. At least three visited emergency rooms and at least one was hospitalized, according to The Chronicle, and the incidents have resulted in four lawsuits against Curaleaf, the brand owner, who cites “human error” as the cause of the mislabeling debacle. The Chronicle reports that Curaleaf says it has changed its manufacturing process to avoid similar incidents.

Mark Pettinger, an OLCC spokesperson, explains that cannabis product testing is completed before finished products are packaged, which may explain how the lab overlooked the mistake. Final product testing is “something that the commission might contemplate going forward,” Pettinger says.

For more on cannabis labels and packaging, turn to page 66.


Steve Katz is the former editor of Label & Narrow Web and is now a regular contributor. He is focused on helping companies in the label industry share their news and tell their stories. Follow him on twitter @LabelSteve.