by Richard W. Millar, Jr.

I like cereal. I have some every day. I won't mention the brands lest I get charged with product placement, but suffice it to say that, although there has been some shuffling, the mix has been generally the same for many years.

When I was a youngster, the mix was far more varied. Not because of taste, which was largely irrelevant to me then, but because of the purchasing opportunities. There was no end of exciting toys that you could send in for with a boxtop and a small tribute - one "thin" dime sticks in my mind, but I could be way off. It seems that all the "blood and thunder" (my disapproving Grandmother's words) radio shows were sponsored by one cereal or another each offering a never ending supply of necessary items.

I would badger my mother to buy this brand or that brand so that I, in turn, could send the boxtop in and gain another important addition to what proved to be a highly temporary collection. As a result, we had a pantry full of largely ignored topless cereal boxes lined up like a troop of headless soldiers.

I no longer remember everything I acquired through cereal boxtops, but I do recall two. One was a Captain Midnight Decoder Whistle which on one side looked like an ordinary blue whistle but which sported a red dial on the other side with letters of the alphabet which could be spun and matched up with numbers on a surrounding stationary ring. My friends and I would share and decode coded messages that I was certain would have baffled the army's best wartime cryptologists. The other, which I think came with a boxtop from Kix, was an Atomic Bomb Ring. It was a miniature replica of the "big" one except that it had a glass-like eyepiece at the detonator end through which you could see things that passed, I suppose, for atoms. It, like all similar rings, was mounted on an adjustable band of ersatz gold which could be squeezed or pulled to fit the slenderest or stoutest finger. Also, as was the case with similar rings, it turned your finger green as the "gold" deteriorated with remarkable rapidity.

I don't think anyone sends boxtops in any more and the concern has changed from whatever ancillary goodies could be purchased to truth in advertising about the cereal's contents.

As always, a case (or two) in point.

There is a cereal, I have just learned, called "Cap'n Crunch with Crunchberries." I don't know who Cap'n Crunch is but will assume he is an important enticement to the present young set. He (or more accurately his maker) was the target of a class action lawsuit. The charge was, and I swear I am not making this up, that crunchberries are not real berries. The lead plaintiff contends that she was misled into thinking these were real, wholesome, nutritious berries. If that is not a showstopper all by itself, she was not in pro per. She had a lawyer. And apparently she thought there was a class of similarly deceived people out there or at least her lawyer did. Not only that, this was a FEDERAL case in California.

The defendant manufacturer hired a really big law firm which made a (probably really big) motion to dismiss the case which had been posited on claims of false advertising, unfair competition and consumer remedies. This required a federal judge to actually analyze the case.

"...while the challenged packaging contains the word "berries" it does so only in conjunction with the descriptive term "crunch." This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a "crunchberry." Furthermore, the "Crunchberries" depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both the product contains 'sweetened corn & oat cereal' and that the cereal is 'enlarged to show texture.' Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist."

I guess judges are not allowed to write "there is no such thing, lady. Dismissed!" The court did grant the motion to dismiss without allowing a right to amend, concluding: "The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense. The Court has no intention of allowing that to happen."

It didn't help the plaintiff when the court learned that her lawyer had brought an earlier, similar lawsuit. In 2007 her lawyer, using a different plaintiff as the vehicle, sued a different manufacturer claiming that "Froot Loops" did not contain real fruit - as if the spelling of the name alone was not a clue. Furthermore, and again I am not making this up, the plaintiff (in this case a male) did not discover this from reading the ingredients posted on the box. He learned it from an article in the Los Angeles Times reporting on a study by something called the Strategic Alliance for Healthy Food and Activity Environments. Now, I ask you, given the choice of reading a cereal box or the report of the Strategic Alliance, etc. which would you chose? I would have fallen asleep just reading the title of the report.

The motion to dismiss included a request for judicial notice with copies of four Froot Loop boxes. Aside from observing the spelling of "Froot" and noting that the cereal pieces were brightly colored rings "which in no way resemble any currently known fruit," the District Court (yes, this was another federal case) concluded that no reasonable consumer would have been misled and dismissed the action with prejudice.

Well, I don't know about you, but in light of these two cases, I think the lawyer should be disbarred or declared a vexatious litigant or something.

He is clearly a cereal offender.