Austen's Natural Frozen Pops, Inc., the maker of GoodPop frozen popsicles, challenged "100% Real Fruit" claims made by Jonny Pops, LLC. GoodPop alleged that Jonny Pops advertised popsicles as having more fruit and less sugar than the products actually contained. How does consumer perception research support or refute these types of claims?
Market Context and Complaint
GoodPop advertises its products as "better for you," emphasizing the absence of added sugar and artificial colors. Jonny Pops markets visually similar products using packaging and messaging that also highlight fruit imagery, "simple ingredients," and claims of "100% real fruit."
GoodPop alleged that Jonny Pop’s marketing was false and deceptive, since their popsicles consist of water and cane sugar, with less than 2% real fruit. In the complaint, GoodPop alleges that consumers confuse the brands, which prompted GoodPop to issue a public clarification in early 2024, and that the conduct of Jonny Pops violated California law.
Survey Evidence Cited in the Complaint
GoodPop product’s referenced consumer survey evidence. The complainant, GoodPop, identifies the survey sponsor or methodology in detail; it describes a survey of grocery shoppers aged 18 to 65 that purportedly measured consumer understanding of the “Fruit Stacks” product from Jonny Pops.
According to the complaint:
- Nearly half of respondents believed the product was made primarily from fruit.
- More than 78 percent believed the product contained at least 50 percent fruit.
- Approximately one-third believed the product contained at least 90 percent fruit.
- Sixty-one percent believed most of the sugar in the product came from fruit.
GoodPop alleges that these beliefs are inconsistent with the product's actual composition, which it claims contains less than 2% product. The complaint referenced survey findings related to imagery on packaging. Over two-thirds of respondents reported believing that Jonny Pops products contained fruits depicted on the front of the package, including lime, lemon, blue raspberry, and grapes. Approximately 70 percent believed that the pictured fruit was actually present in the product.
Materiality and Consumer Decision-Making
The cited survey evidence also addressed materiality. More than half of the respondents indicated that they would not be likely to purchase the product if they knew that over 90 percent of the calories came from added sugar. In false advertising disputes, courts often consider whether challenged representations are material to consumers and whether the representations influencer purchase motivation.
The Evidentiary Role of Consumer Surveys
If the survey evidence described in the complaint was collected using accepted methodologies and an unbiased design, it could play a significant role in the ongoing litigation. Courts frequently accept properly designed consumer surveys as evidence in assessing deception, likelihood of confusion, and materiality. Both parties may introduce additional survey evidence, including rebuttal surveys that challenge the reliability of the studies referenced in the complaint.
Ingredient-based claims and packaging can increase false advertising liability if consumers perception differs from what a product delivers. Claims such as “100% real fruit” are likely to be closely scrutinized. IMS Legal Strategies experts design, evaluate, and rebut consumer surveys addressing deception, likelihood of confusion, and materiality in false and deceptive advertising litigation.
