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Videtto v. Kellogg USA - No. 2:08-cv-01324-MCE-DAD, 2009 U.S. Dist. LEXIS 43114 (E.D. Cal. May 20, 2009)


Under California law, goods are merchantable if they: "(a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any." Cal. Com. Code § 2314(2)


An individual consumer and resident of California filed an action against the company that manufactures, markets, and promotes Froot Loops cereal for intentional misrepresentation, breach of implied warranty, and violation of the Consumer Legal Remedies Act. The consumer alleged that in addition to the use of the word "Froot" in the product name, pictures of brightly colored cereal made to resemble fruit, as well as pictures of actual fruit, are depicted on the principal display panel of the product, in truth the product contained no actual fruit of any kind. If he had known that the product contained no fruit, he would not have purchased it. Consumer alleged that the defendant's marketing of the product was deceptive and likely to mislead and deceive a reasonable consumer. The company filed a motion to dismiss for failure to state a claim.


Should the complaint be dismissed?




The court held that the consumer  failed to state a claim for all his causes of action. It held that Froot Lopp packaging made clear that the product was a "multi-grain" cereal, and truthfully depicted that cereal in the shape of multi-colored rings, rings that do not resemble any known fruit. Moreover, the defendant used the word "Froot" as part of its trademarked name, and the fanciful use of a nonsensical word cannot reasonably be interpreted to imply that the product contains or is made from actual fruit. Thus, Froot loops packaging was not misleading or deceptive. Furthermore, the consumer made no allegations indicating that the challenged packaging was false or contains false statements. It also noted that the implied warranty  of a product "does not impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality."

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