Chiappetta v. Kellogg Sales Co., 21-CV-3545

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtHonorable Marvin E. Aspen, United States District Judge
PartiesSTACY CHIAPPETTA, individually and on behalf of all others similarly situated, Plaintiff, v. KELLOGG SALES COMPANY, Defendant.
Docket Number21-CV-3545
Decision Date01 March 2022

STACY CHIAPPETTA, individually and on behalf of all others similarly situated, Plaintiff,


No. 21-CV-3545

United States District Court, N.D. Illinois, Eastern Division

March 1, 2022


Honorable Marvin E. Aspen, United States District Judge

This putative class action concerns the alleged misleading labeling of toaster pastries. Plaintiff Stacy Chiappetta claims that the packaging for Defendant Kellogg Sales Company's (“Kellogg”) Unfrosted Strawberry Pop-Tarts (the “Product”) is misleading because it “give[s] consumers the impression the fruit filling contains only strawberries and/or more strawberries than it does.” (Complaint (“Compl.”) (Dkt. No. 1) ¶ 2.)[1] Chiappetta brings claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq.; negligent misrepresentation; breaches of express warranty, implied warranty of merchantability, and the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.; fraud; and unjust enrichment. (Id. ¶¶ 74-100.) Chiappetta asserts that we have jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(2). (Id. ¶ 45.)[2]


Kellogg has moved to dismiss Chiappetta's claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Motion to Dismiss Plaintiff's Class Action Complaint (“Motion”) (Dkt. No. 10) at 1.) Kellogg has also moved to dismiss Chiappetta's request for injunctive under Federal Rule of Civil Procedure 12(b)(1) for lack of standing. (Id.) For the reasons set forth below, we grant Kellogg's Motion.


We have taken the following facts from the Complaint and deem them to be true for the purposes of this Motion. See Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

Chiappetta purchased the Product “on one or more occasions . . . at stores including but not necessarily limited to” a Jewel Osco store in Chicago Heights, Illinois, “in or around March 2021.” (Compl. ¶ 58.) The Product was “sold at a premium price, approximately no less than $5.49 for 12 Pop-Tarts (20.3 OZ), excluding tax.” (Id. ¶ 44.)

A front view of the Product's packaging is found below:


(Image Omitted)

(Id. ¶ 1.) Chiappetta claims that the Product packaging misled her and other consumers into believing that the Product's fruit filling contained “only strawberries and/or more strawberries than it does” because it bears the word “Strawberry, ” and it depicts half of a fresh strawberry and red fruit filling. (Id. ¶ 2.) In reality, though, the Product's fruit filling contains more than just strawberries; it also contains dried pears, dried apples, and a food dye known as “red 40, ” among other ingredients. (Id. ¶ 26.)

Strawberries confer certain health benefits. (Id. ¶¶ 11-17.) For example, they are an “excellent source of vitamin C, ” and they have “uniquely high levels of antioxidants known as polyphenols.” (Id. ¶¶ 12, 14 (internal quotation marks and citations omitted).) However, the “Product is unable to confer any of the[se] health-related benefits because it has less strawberries than it purports to” have. (Id. ¶ 23.) Additionally, the red 40 food dye used to color the Product's filling “is connected with learning disorders and hyperactivity in children.” (Id. ¶ 39.)

Chiappetta contends that but for Kellogg's “misrepresentations and omissions, ” she either would not have bought the Product or would have paid less for it. (Id. ¶¶ 62, 63.) She adds that she intends to purchase the Product again “when she can do so with the assurance that [the] Product's labels are consistent with the Product's components.” (Id. ¶ 64.) Chiappetta brings


this putative class action on behalf of herself and “all purchasers of the Product who reside in Illinois during the applicable statutes of limitations.” (Id. ¶ 65.)


I. Rule 12(b)(6) Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint, but not the merits of a case. McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering such motions, courts “construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor.” Tamayo, 526 F.3d at 1081. A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks sufficient facts “to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although a facially plausible complaint need not give “detailed factual allegations, ” it must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964- 65. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. These requirements ensure that a defendant receives “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964.

Claims sounding in fraud, including a claim alleging deceptive practices in violation of the ICFA, must also meet the heightened pleading standard of Federal Rule of Civil Procedure


9(b). See Fed. R. Civ. P. 9(b); Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019); Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399 (7th Cir. 2011). In practice, this means that a plaintiff “must identify the ‘who, what, when, where, and how' of the alleged fraud.” Benson, 944 F.3d at 646 (quoting Vanzant v. Hill's Pet Nutrition, Inc., 934 F.3d 730, 738 (7th Cir. 2019)).

II. Rule 12(b)(1) Motion to Dismiss

A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) challenges the court's subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). If a court does not have subject matter jurisdiction over a claim, the claim must be dismissed. See In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). Where, as here, there is a facial challenge to the court's subject matter jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the matter. See Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015).



The ICFA safeguards “consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010) (internal citation and quotation marks omitted). “In order to state a claim under the ICFA, a plaintiff must show: ‘(1) a deceptive or unfair act or promise by the defendant; (2) the defendant's intent that the plaintiff rely on the deceptive or unfair practice; and (3) that the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.'” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 739 (7th Cir. 2014) (quoting Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir. 2012)).


“Although ICFA claims often involve disputed questions of fact not suitable to a motion to dismiss, a court may dismiss the complaint if the challenged statement was not misleading as a matter of law.” Ibarrola v. Kind, LLC, 83 F.Supp.3d 751, 756 (N.D. Ill. 2015) (citing Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 940 (7th Cir. 2001); Pelayo v. Nestle USA, Inc., 989 F.Supp.2d 973, 978 (C.D. Cal. 2013)).

Chiappetta challenges a “deceptive, ” rather than “unfair, ” practice. (See, e.g., Compl. ¶ 61; Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Complaint (“Opposition”) (Dkt. No. 14) at 9-16 (explaining why she has plausibly alleged a “deceptive act or practice” under the ICFA).) Therefore, we apply the standard for deceptive practices to Chiappetta's ICFA claim. “A practice is deceptive ‘if it creates a likelihood of deception or has the capacity to deceive.'” Benson, 944 F.3d at 646 (quoting Bober, 246 F.3d at 938). “To determine the likelihood of deception, courts apply a ‘reasonable consumer' standard.” Geske v. PNY Techs., Inc., 503 F.Supp.3d 687, 704-05 (N.D. Ill. 2020). This standard “requires more than a mere possibility that [a] label might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Rather, the reasonable consumer standard requires a probability that a significant portion of the general consuming public . . . acting reasonably in the circumstances, could be misled.” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (internal citations and quotation marks omitted); Geske, 503 F.Supp.3d at 705 (quoting Ebner).

Courts considering “deceptive advertising claims should take into account all the information available to consumers and the context in which that information is provided and used.” Bell v. Publix Super Markets, Inc., 982 F.3d 468, 477 (7th Cir. 2020). “What matters most is how real consumers understand and react to the advertising.” Id. at 476. “[W]here


plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels or other advertising, dismissal on the pleadings may well be justified.” Id. at 477.

According to Kellogg, Chiappetta has not plausibly pled that the front of the Product's packaging is deceptive. (Memo at 9-15.) In particular,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT