“Cap’n Crunch with Crunchberries” is a breakfast cereal. On the front of the packet, the beaming Cap’n is depicted thrusting a spoonful of colourful little balls of cereal at the shopper. But Janine Sugawara recently organised a mutiny. In a putative class action, she sued the manufacturer for $5 billion for fraud, misrepresentation, and breach of warranty when she discovered the cereal balls were not fruity.

Sugawara had eaten the brightly coloured, sweetened corn and oat cereal for four years but argued that this was only because she had been deceived by the manufacturer into believing that the product contained fruit.

As noted in Lowering the Bar, the District Court for the Eastern District of California ruled that “there is no such fruit growing in the wild or occurring naturally in any part of the world” and so no reasonable consumer would be deceived into believing that the cereal contained “a fruit that does not exist”.

The court also noted that Sugawara didn’t allege that anything on the packet was false so there could be no finding of fraud. It held that for the claim to proceed the court would have to “ignore all concepts of personal responsibility and common sense” and it wasn’t going to let that happen.

Sugawara’s failed action for fraudulent advertising compares with other curious cases in which the litigant took an advert too literally. Richard Overton from Michigan sued Anheuser-Busch, the manufacturers of Budweiser, for $10,000 for its beer adverts. One particular objection of his was the television advert for Bud Light involving two men, a beer truck and fantasies of “tropical settings, beautiful women and men engaged in endless and unrestricted merriment”. He complained the advert promoted “impossible manifestations”. In 1994, the Michigan Court of Appeals ruled that the fantasies represented in such adverts are not expected to stand up to the rational analysis of the courtroom. His claim was soberly rejected by the judges.

Professor Gary Slapper is Director of the Centre for Law at the Open University, his book How the Law Works is published by HarperCollins

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