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The People v. Cap’n Crunch: Inside the Crunch Berry Lawsuits

Between 2007 and 2010, a number of misinformed consumers rained legal hell on Kellogg and PepsiCo when they discovered the companies’ kids’ cereals didn’t contain real fruit

For nearly 60 years, Cap’n Crunch and Toucan Sam have served the public honorably. One is a respected seaman; the other is a beloved immigrant. In 1963, each launched a new fruity breakfast cereal that quickly became part of the very fabric of this country. But despite their obvious contributions to the American (breakfast) experience, both came under assault about a decade ago by people claiming the mascots had been knowingly deceitful.

Beginning in 2007, multiple Californians declared that they were tricked by Froot Loops and Crunch Berries because, due to the names of the cereals, they believed the cereals contained a significant amount of real fruit. As ridiculous as this sounds, these claims  were strong enough — or at least presented the prospect of a big enough payday — to attract several different law firms, as there were a total of seven of these nearly identical lawsuits from 2007 to 2010. “All of them were brought under California’s Consumer Protection Law,” explains Kevin Underhill, a partner at the law firm Shook, Hardy & Bacon and the author of The Emergency Sasquatch Ordinance: And Other Real Laws That Human Beings Actually Dreamed Up. He adds that while these kinds of laws make it easier to sue companies for wrongdoing, they can result in absurd cases as well.

The Froot Loops and Crunch Berries lawsuits never amounted to much, as they were deemed to be entirely frivolous (and one was tossed out on legal technicalities). Regardless, they do offer something to the annals of legal history — namely, they’re the most absurd and hilarious court documents ever filed. And so, with Underhill as my guide, I pulled out some of the most insane bits of legal lunacy from each.

McKinnis v. Kellogg, July 2007

The court summary for the first of these lawsuits states that the “plaintiffs, a married couple, allege that they wanted to purchase healthy cereal for their children, so they purchased this product because they believed that, based on the front panel of the cereal box, that the cereal contained actual fruit.” 

Apparently, they were lead to believe this because of “the use of the word ‘Froot’ in the name, [and] the depiction of brightly colored rings of cereal that plaintiffs claim resemble fruit.” But the most ridiculous part of their claim is where it says that the “plaintiffs purchased [Froot Loops] from time to time over the past four years.” 

Four fucking years! It took them that long to realize that Froot Loops weren’t real fruit!

Unsurprisingly, the case was ruled against the plaintiffs as a misuse of the Consumer Protection Law. The ruling highlights the different spellings of “fruit” and “Froot,” but really eye-rolls the plaintiffs’ claim that the cereal resembles actual fruit. The ruling states, “Plaintiffs’ allegation that the cereal pieces themselves resemble fruit is not rational, let alone reasonable. The cereal pieces are brightly colored rings, which in no way resemble any currently known fruit.” 

Underhill, who has covered these cases extensively for Forbes as well as his legal humor blog “Lowering the Bar,” explains that some lawyers — himself included — relish the opportunity to be funny in a ruling. “It doesn’t occur often, and you have to be very careful and appropriate, but once in a while you get the perfect opportunity,” he tells me. 

Videtto v. Kellogg, June 2008

A layman would rightfully assume that a ridiculous lawsuit that’s been laughed out of court might dissuade similar filings in the future, but Underhill explains that this isn’t always the case. On the contrary, actually: “Many lawyers have alerts to let them know of these kinds of cases,” as they’re looking to jump on the bandwagon if they sniff an opportunity. That’s how you get a case like Videtto v. Kellogg, which made the exact same arguments as McKinnis v. Kellogg and was dismissed in much the same manner.

“The packaging makes clear that the product is a ‘multi-grain’ cereal, and truthfully depicts that cereal in the shape of multi-colored rings, rings that do not resemble any known fruit,” the ruling states. “Moreover, defendant uses 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.”

Sugawara v. PepsiCo Inc., June 2008 and July 2009

With a couple of swipes at Toucan Sam having failed, someone decided to put Cap’n Crunch to the test over the use of the word “berries” in Crunch Berries cereal. For this one, Underhill says his favorite excerpt from the case summary reads, “In addition to the use of the word ‘berries’ in the product name, the product’s principal display panel, the portion of the product box designed to face consumers as they shop in a market aisle, features the product’s namesake, ‘Cap’n Crunch,’ thrusting a spoonful of ‘Crunch Berries’ at the prospective buyer.” 

As such, for his Forbes write-up on the case, Underhill wanted to go with the headline, “Lawsuits Accuse Sea Captain of Thrusting His Berries at Unsuspecting Consumers.” Sadly, Forbes went with the much more conservative, “California Plagued With ‘Frooty’ Lawsuits.”

The plaintiff also borrowed the Fruit Loops argument pretty much verbatim: “The Crunch Berries are pieces of cereal in bright fruit colors, shaped to resemble berries. While close inspection reveals that the Crunch Berries are not really berries, plaintiff contends that the colorful Crunch Berries, combined with use of the word ‘berry’ in the product name, convey the message that Cap’n Crunch is not all sugar and starch, but contains redeeming fruit.”

Again, however, the judge wasn’t buying it, writing, “While the challenged packaging contains the word ‘berries,’ it does so only in conjunction with the descriptive term ‘crunch.’ This court is not aware of, nor has plaintiff alleged the existence of, any actual fruit referred to as a ‘crunch berry.’” An even better burn comes later: “As far as this court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.”

Janine Sugawara, the plaintiff in this case, also pursued it as a class-action lawsuit, which was similarly dismissed. With two cases against Quaker Oats — which Pepsi owns — Sugawara was briefly the queen of frivolous cereal lawsuits. Within a year, though, she’d be overshadowed by a man named Roy Werbel.

Werbel v. Kellogg and Werbel v. PepsiCo, Inc., September 2009 and March 2010

On September 22, 2009, Werbel filed two lawsuits — one against Kellogg and the other against PepsiCo. The Kellogg claim was dismissed because Werbel’s lawyers failed to actually serve Kellogg with the lawsuit — whoops! It didn’t go much better when Werbel tried again the following April.

As for his claim against Cap’n Crunch, Werbel didn’t show up to a case management conference, but he eventually got his shit together and was able to proceed with things the following July. None of it was all that original. As with the others, Werbel maintained that “the colorful Crunch Berries on the [cereal box], combined with the ‘berry’ in the product name, conveys only one message: that Cap’n Crunch has some nutritional value derived from fruit,” and that the package had led him to believe that “Crunch Berries is a combination of Crunch biscuits and colorful red, purple, teal and green berries.”

The judge savaged him in response: “It is obvious from the product packaging that no reasonable consumer would believe that Cap’n Crunch derives any nutritional value from berries. As an initial matter, the term ‘Berries’ is not used alone, but always is preceded by the word ‘Crunch,’ to form the term, ‘Crunch Berries.’ The image of the Crunch Berries, which is ‘ENLARGED TO SHOW TEXTURE,’ shows four cereal balls with a rough, textured surface in hues of deep purple, teal, chartreuse green and bright red. These cereal balls do not even remotely resemble any naturally occurring fruit of any kind.”

With that, the cereal lawsuits drew to a close, and Toucan Sam and the Cap’n have been more or less left alone since. Which, I have to say, is kinda disappointing. I understand that these lawsuits are total money-grabs that waste the time of important judges and lawyers — to say nothing of taxpayer money — but they do provide some levity in a pretty miserable world. Perhaps then, I can remind all the serial cereal litigants out there that a certain white rabbit has been selling fruity cereal since 1954.

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