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A California appeals court has declined to revive a false advertising lawsuit against Welch Foods Inc. and PIM over the labeling of Welch’s Fruit Snacks.
The appellate court’s decision, filed Oct. 27, means the San Francisco City and County Superior Court’s ruling that Welch is able to tout that Welch’s Fruit Snacks’ first ingredient is fruit, even though “fruit purée” is what appears on the label, will stand.
Originally filed as a class action lawsuit by lead plaintiff Thomas Iglesias, the complaint accused Welch Foods of violating the California Consumer Legal Remedies Act, as well as the state’s unfair competition law.
Iglesias had argued the statement “Fruit is our 1st Ingredient” on the Welch’s Fruit Snacks packaging was false and misleading. He claimed that if each fruit purée contained in the snacks was listed separately, “sugar would be the first ingredient.”
In addition, Iglesias said, Welch’s grouping of several fruits as fruit purée is allegedly a violation of Food and Drug Administration (FDA) regulations that require foods to list ingredients by their common names in descending order by weight, and by the ingredient’s specific name rather than a collective or generic name.
The trial court ruled in favor of Welch Foods, and Iglesias appealed, claiming the trial court did not defer to an FDA Compliance Policy Guide, thereby improperly interpreting the relevant regulations, and took into account hearsay evidence.
On the question of the nature of fruit purée, the appellate court pointed out, as did the trial court, that many companies — such as Florida’s Natural, Brach’s, Dare Realfruit Gummies, Hawaiian Punch and Lindt European Specialties — use the term fruit purée, followed by a “parenthetical listing of the sub-ingredients contained therein.”
Other products that list fruit purée in their ingredients include snack bars, sorbets, chocolates, pastries, squeezable fruit/vegetable purées and drinks, yogurt, and other snacks, nearly all of them involving “a purée of at least one type of fruit and other ingredients,” the court wrote.
“Despite Iglesias’s arguments to the contrary, these products demonstrate a similarity in how the phrase ‘fruit purée’ is used in ingredient labeling.”
Iglesias also took issue with the testimony provided by Basant Dwivedi, Ph.D., chief operating officer for defendant PIM.
Dwivedi told the trial court he created the Welch’s Fruit Snacks formula and “instructs the fruit purée supplier as to what flavor profile PIM requires.” He claims the purée supplier has repeatedly refused to give PIM its formula.
According to Dwivedi, no one at PIM knows how much of “each constituent fruit” is in any purée.
Dwivedi claimed if PIM wasn’t able to list fruit purée as an ingredient, “it would be required to develop its own substitute or try to find another supplier who would provide its formula.”
The appellate court said hearsay evidence is evidence made “other than by a witness while testifying at the hearing” and is offered as proof that the stated matter is true.
“Dwivedi’s statements regarding the composition of the fruit purée falls within this definition,” the appellate court wrote. “… However, we find the trial court’s error harmless.”
“While we agree the trial court incorporated one statement containing hearsay into its decision, we find the error harmless and affirm the judgment,” the appellate court wrote.
Have you ever purchased Welch’s Fruit Snacks? Do you think Welch should be allowed to call fruit the “first ingredient” of Welch’s Fruit Snacks? Give us your thoughts in the comments below.
The plaintiff is represented by Rosemary M. Rivas of Levi & Korsinsky LLP.
The Welch’s Fruit Snacks False Advertising Lawsuit is Thomas Iglesias v. Welch Foods Inc., a Cooperative, et al., Case No. A159565, in the Court of Appeal of the State of California, 1st Appellate District, Division One.
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