Most people are familiar with Fig Newtons, an iconic cookie that has been around for over a century (at least according to its Wikipedia entry).  There are many other popular versions of Newtons—albeit of more recent vintage—such as raspberry and strawberry Newtons.  These fruit Newtons drew the ire of plaintiff Monique Manchouck, who filed a false advertising class action in the Northern District of California—which has become known as the nation’s “Food Court” —against the makers of the cookies.

What was her beef?  According to her complaint, the product packaging states that Newtons are “made with real fruit.”  Yet, the plaintiff argued, the cookie filling contained “merely mechanically processed fruit puree, which is not ‘real fruit.’” And without that alleged misrepresentation, she argued, she “would not have purchased” the Newtons—or at least, “would not have paid a ‘premium price’” for them. 


Thus, the court in Manchouck v. Mondelez International, Inc. d/b/a Nabisco was asked the vexing philosophical question: “When is a fruit not really a fruit?”

Alas, Judge Alsup found the lawsuit less appetizing than the plaintiff had hoped. After concluding that the plaintiff’s claimed injury satisfied Article III’s constitutional standing requirements, he tossed the claim on the merits, explaining: “Plaintiff has not plausibly alleged why” a “reasonable consumer” would think that “the statement ‘made with real fruit’ would not include mechanically separated fruit puree”

Judge Alsup gave four reasons why he believed that the plaintiff’s lawsuit “strains credulity”:

First, the complaint does not dispute that the cookies contain real fruits in purée form. … Second, even the most narrow definition of “real fruit” does not exclude fruit that has been strained or blended into puréed form. Purée Definition, American Heritage Dictionary (5th ed. 2011). Third, the packaging that said, “made with real fruit,” also prominently displays a depiction of the cookies’ puréed fruit filling …. Fourth, the amended complaint admits that the list of ingredients on the packaging serves notice to consumers that the products contain, “Raspberry Purée” and “Strawberry Purée” respectively . . .

Judge Alsup’s bottom line: “It is ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton.” Accordingly, he dismissed the case without leave to amend.

The plaintiff has filed a notice of appeal. Will common sense win out in the Ninth Circuit? We’ll be watching!