Hunton Retail Law Resource

The Ninth Circuit Court of Appeals recently affirmed the dismissal of a putative class action lawsuit brought by a consumer who claimed that The Kroger Company supermarkets falsely advertised its spreadable fruit product containing fruit-based sweeteners as “Just Fruit.” 

The plaintiff claimed that Kroger marketed its spreadable fruit product as “Just Fruit” in order to capitalize on consumer demand for minimally processed foods that avoid unhealthy added sugars. This, despite the fact that the product actually contains what the plaintiff called “significant added sugar, well beyond the sugar occurring naturally in the fruit,” including additives such as pectin, calcium citrate, apple juice concentrate, and citrus acid. While the plaintiff conceded that these additional ingredients are each extracted and isolated from actual fruit, she claimed that they are still not “fruit” because they appear in a form that does not exist in nature.

The Ninth Circuit ultimately agreed with Kroger and the district court that the term “Just Fruit” is not objectively false in the context of spreadable fruit products. The Court found that spreadable fruit products, which also do not exist in nature, necessarily contain ingredients other than the crushed reproductive bodies of a seed plant. And, unlike many other spreadable fruit products which do contain non-fruit ingredients such as flavor extracts, non-fruit sugar, food coloring, or animal gelatin, each ingredient in Kroger’s “Just Fruit” product is actually derived from fruit.

The Ninth Circuit further agreed with the district court’s conclusion that Kroger’s “Just Fruit” label is not likely to mislead a reasonable consumer. The Court found that the “Just Fruit” label does not expressly or impliedly say anything about the sugar content of the product and that a reasonable consumer would not interpret it as doing so—particularly when spreadable fruit products tend to contain added sugars.

The matter is Sarah Vitort v. The Kroger Company and Fred Meyer Stores, Inc., No. 22-35185 (9th Cir. Apr. 28, 2023), on appeal from the United States District Court for the District of Oregon.