• On March 3, 2023, Judge Buchwald of the U.S. District Court for the Southern District of New York permanently tossed a proposed class action claiming that Pervine Foods’ FitCrunch protein bars are fraudulently advertised as healthy, ruling that a reasonable consumer wouldn’t look at the label, which features an image of desserts like Oreo cookies, and believe the bars were healthy.  See Cade Seljak et al. v. Pervine Foods LLC, case number 1:21-cv-09561.
  • Plaintiffs argued that they believed the FitCrunch bars were healthy even though the terms “healthy” or “health” do not appear on any of the products’ labels or in any of Pervine Foods’ advertisements. The customers’ sole belief that the protein bars were healthy was entirely premised on the use of the term “fit” in the products’ name which, they argued, is synonymous with “healthy.” Further, the customers claimed they were misled into thinking the bars were healthy when the products actually contain between 8 and 18 grams of fat.
  • According to Judge Buchwald’s opinion granting defendant’s motion to dismiss, Pervine Foods, which sells FitCrunch protein bars and FitBar energy bars, did not falsely advertise its products as “healthy.” The Pervine Foods products contain high levels of protein and come in flavors that sound like desserts, including milk and cookies, chocolate chip cookie dough, apple pie and chocolate peanut butter. The FitCrunch label states that the product is a “whey protein bar” with a “soft cookie center.” Further, the number of calories represented on many of the FitCrunch product labels, which ranges from 190 to 380 calories, is higher than the number of calories found in an average candy bar.
  • “[B]efore even turning to the ingredient label, a reasonable consumer viewing this label simply would not believe that FitCrunch products are ‘healthy’ . . . [i]ndeed, such a belief is plainly inconsistent with the face of the package, and with common sense,” said Judge Buchwald. The judge further concluded that, even assuming that the defendant’s use of the word “fit” could be interpreted to mean “healthy,” the ingredients listed on the back of the product’s wrapper include the bar’s fat content and could easily cure that confusion.
  • Keller and Heckman will continue to monitor consumer class actions regarding misleading product labels.