After my earlier post on the now-infamous "crunchberries" case, plaintiff's attorney Harold Hewell emailed me to ask that I re-examine the case. I did, and now let me quote more extensively from the 12b6 ruling itself:
"The Crunchberries are pieces of cereal in bright fruit colors, shaped to resemble berries. While close inspection reveals that the Crunchberries are not really berries, Plaintiff contends that the colorful Crunchberries, 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." [my emphasis]
Had plaintiff bothered even once to read the list of ingredients during her long-term consumption of the cereal, however, the court notes that "she will discover that the only fruit content is a touch of strawberry fruit concentrate, twelfth in order on the ingredient list."
So this was a class action based on the fact that the name, a fictitious one, denoted a nutritious content belied by the explicit list of ingredients. [True, the plaintiff did not allege that she thought the cereal contained whole berries, just that it had fruit content.]
I think the judge was correct to grant the motion to dismiss.