Overview:
Good Pops sued Jonny Pops, alleging that it falsely and deceptively advertised its popsicles in a way that implied the popsicles have much less sugar and much more fruit than they actually have. How have consumer surveys been used to make this case?
Good Pop, Bad Pop
Austen’s Natural Frozen Pops, Inc., maker of GoodPop brand popsicles, has brought a false and deceptive advertising claim against a maker of what its lawyer called “Bad Pops.” GoodPops offers “better for you” popsicles with no added sugar or colors, and alleges that products from Jonny Pops, LLC appear similar. But Jonny Pops are actually “a wolf in sheep’s clothing,” the complaint says, because the popsicles–despite coming in packages with fruit all over them–are mostly water and cane sugar. GoodPops alleges that Jonny Pops has falsely advertised its products and violated California’s unfair competition law.
GoodPop alleges that Jonny Pops “has tried to mimic GoodPop” by offering similar products, emphasizing fruit in their packaging, and emphasizing better-for-you ingredients and kindness in their marketing. Because of this, the lawsuit claims, some consumers believe that GoodPop is Jonny Pops. This was enough of a concern for GoodPop that it issued a formal letter to consumers in early 2024, attempting to clarify the situation. However, GoodPop’s lawsuit says, Jonny Pops is not like GoodPop, because the company uses sugar and water as main ingredients in its frozen treats. GoodPop argues that Jonny Pops falsely and misleadingly implies that its products are fruit-based by putting fruit on its packaging, claiming its products have “simple ingredients,” and making claims that its products have “100% real fruit.”
Does Survey Evidence Sweeten the Complaint?
Interestingly, GoodPops cited survey evidence in its complaint. The complaint does not specify who conducted the survey or for what purpose, but it does say that a survey of grocery shoppers aged 18-65 found that nearly half of respondents believed that the Jonny Pops product “Fruit Stacks” was made primarily from fruit. GoodPop also says that over 78% of survey respondents believed that the product contains at least 50% fruit, and a third believed that it contains at least 90% fruit. In addition, the complaint says, 61% of respondents believed that the majority of the sugar in the products came from fruit. However, the complaint says the products actually have less than 2% fruit content.
Respondents to the survey cited in the complaint were also interviewed about the fruit on the front of the packaging. According to the complaint, more than two-thirds of respondents believed Jonny Pops contained lime, lemon, blue raspberry, and grapes, and about 70% believed that the fruit on the front of the package was in the product. According to GoodPop, the survey also showed that the packaging representations were material to consumer purchasing decisions, including that 54% of respondents stated they would be less likely to purchase the product if they knew that over 90% of the calories came from added sugar.
Active Ingredients in Likelihood of Confusion and Materiality Surveys
The survey evidence in this complaint—if it comes from a properly designed and conducted survey—could be compelling for the court. Although the complaint also lists cases of actual confusion and anecdotes about consumer confusion in online reviews, courts often prefer survey evidence when it can be shown to be reliable and unbiased. Measures of the likelihood of consumer confusion and materiality are often key in false and deceptive advertising lawsuits. Will Jonny Pops retain its own consumer survey expert to conduct research or rebut the GoodPop survey evidence? Will this case meltdown in the heat of additional evidence?
If you require reliable survey evidence for false and deceptive advertising litigation or rebuttals, contact MMR Strategy Group.