Pop, six, squish: do both popsicle advertisers have it coming?

Here, false advertising claims generate false advertising counterclaims, serving as a reminder that the advertiser who goes to court needs to have its own house in order.

Austin’s Natural Frozen Pops, Inc. v. Jonny Pops, LLC, 2025 WL 3182084, No. 1:24-CV-716-RP (W.D. Tex. Mar. 13, 2025)

The parties target consumers seeking “better-for-you” treat options, selling in healthy grocery stores like Whole Foods and Sprouts. JonnyPops’ boxes show pictures of fruit, and JonnyPops advertises that its products are made from “simple ingredients,” are made with ingredients like “100% real fruit,” and have the “wholesome nutrition of a fruit bar.” JonnyPops also displays the “USDA Organic” label prominently on its packaging.

JonnyPops boxes

GoodPop alleged that this violated California law and the Lanham Act because the two main ingredients in JonnyPops’s pops are water and added cane sugar, and any fruit in the products is only miniscule amounts. And,despite displaying lemons, limes, blue raspberries, and grapes on the packaging for JonnyPops’s “Fruit Stacks” treats, the product allegedly contains none of those fruits. GoodPop’s survey of household grocery shoppers aged 18 to 65 years allegedly found that 50% of respondents believed JonnyPops’s “Fruit Stacks” treat was made primarily out of fruit, while the treat allegedly contains less than 2% fruit content. Likewise, JonnyPops’s advertising allegedly led 61% of respondents to believe that the majority of the sugar in the product came from fruit. GoodPop’s complaint also cited customer reviews that praise JonnyPops’s pops for being a healthier option and having relatively low sugar, and alleged deception among retailers as well.

GoodPop alleged that JonnyPops models its mission, brand positioning, and pops after GoodPop’s. While GoodPop uses Good in its name to refer not only to the ingredients in its products, “but also its desire to inspire a ‘World of Good,’” JonnyPops advertises its mission to be “Make the World A Better Place, One Pop At A Time.” JonnyPops allegedly uses “nearly identical flavors” and similar package design and claims. [In the absence of a trade dress claim—and flavors are surely functional for ice pops—how could that matter?]

JonnyPops boxes with same flavors as Goodpop boxes

First, JonnyPops argued that the images of fruit do not mislead consumers when viewed in context of the entire package, because the fruit images indicate flavors, rather than ingredients, especially in combination with the ingredients list on the side or back of the package. But “the mere presence of an ingredient statement on the back of the product ‘does not eliminate the possibility that reasonable consumers may be misled.’” Misleadingness was plausible. Nor were the pictures and the “simple ingredient” claim non-actionable puffery. The statements at issue here, especially the pictures, weren’t exaggerated in the way typically associated with non-actionable puffery: words like “best,” “better,” and “favorite.” Even if “simple” may be subjective, it was the phrase “simple ingredients” in combination with the fruit pictures and the rest of JonnyPops’s advertising that allegedly misled consumers; that context made the claim plausibly misleading.

Deception was plausible based on the survey as well as consumer reviews, along with allegations that “a nutritionist with more than 1 million followers on social media” recommended JonnyPops over another pop that contained less sugar, mistakenly believing that it was JonnyPops’s pop that had less sugar.

The consumer reviews also plausibly showed materiality. E.g., consumers believed and cared about claims that the pops have “a lower sugar content and appear[] to be a better for you[] product tha[n] your typical pop” and are “made of all natural ingredients and had good nutrition compared to a lot of sugar brands.”

And injury was plausible because of the direct competition, and because of allegations that, “where retailers have limited space to stock either GoodPop or JonnyPops in their better-for-you section, retailers have chosen JonnyPops due to its deceptive sales presentations, because JonnyPops is not truly a better-for-you product.” For example, “when JonnyPops began selling next to GoodPop as a better-for-you product in one health grocer, GoodPops’s sales velocity declined by about 25%.”

The state law claims survived for the same reason; it was ok to assert California claims in Texas because the alleged wrongful conduct occurred in California.

Austin’s Natural Frozen Pops, Inc. v. Jonny Pops, LLC, 2025 WL 3182084, No. 1:24-CV-716-RP (W.D. Tex. Nov. 10, 2025)

The parties compete in the market for “ice pops.” GoodPop sued JonnyPops under the Lanham Act and also for violations of California’s unfair competition law. JonnyPops counterclaimed under the same laws, alleging that GoodPop has “duped consumers into thinking that its products are nutritionally superior to other ice pops, including JonnyPops’s products.” The court refused to dismiss some of the counterclaims.

GoodPop allegedly falsely claimed that “[i]f it’s a GoodPop, it’ll never have ... refined sugars,” even though many of its products “contain cane sugar, which is always refined to some extent,” citing definitions of “raw sugar,” “sugar,” and “cane sugar.” It alleged that four consumer reviews showed consumer belief and reliance. The court found that, at this stage, it would accept the claim that cane sugar is refined sugar. Thus, JonnyPops had alleged actual falsity and didn’t have to provide separate evidence of deception/materiality; in the alternative, three of the alleged online reviews “specifically refer to GoodPop’s products not containing refined sugar, which make it plausible that GoodPop’s alleged deception is material.”

refined sugar claim on box

Second, JonnyPops alleged that GoodPop’s website makes the false or misleading statement, “The fruit in GoodPops is real and really good! We use real, whole fruits, juices and purees” when (1) certain GoodPops do not contain any fruit, and (2) some GoodPops that do contain fruit ingredients are made with fruit-juice concentrates and other additives, rather than “whole fruit, juices or purees.” It quoted seven online consumer reviews that mention GoodPops containing 100% fruit juice.

Cherry n' Lemonade flavor

First, it wasn’t plausible that consumers would be deceived by SKUs whose names didn’t claim fruit: the Disney Mickey Mouse Fudge n’ Vanilla Pop, the Fudge n’ Vanilla Crunch Pop, the Fudge n’ Caramel Crunch Pop, and the Chocolate Vanilla Sandwiches. However, GoodPop’s Cherry n’ Lemonade Pop and Star Wars Green Apple Lightsaber Pops allegedly “consist largely of fruit-juice concentrates and other additives, rather than whole fruit, juices, or purees.” Aaccepting as true JonnyPops’s allegation that fruit juice concentrate is not a type of whole fruit, juice, or puree, that was enough to plead literal falsity; several cited reviews positively reference GoodPop’s Cherry n’ Lemonade Pop being made with “100% real juice.”

Third, JonnyPops alleged that GoodPop uses images of children eating its most sugary products to give consumers the misleading impression that its products are healthy for children. No dice. None of the alleged online reviews or comments were tied in any way to images of children in its advertising.

Fourth, JonnyPops alleged that GoodPop’s packaging of its products is “misleading and deceptive because [it] displays images of fruit that are not the exclusive or even the primary ingredients of its products.” For example, GoodPop’s Cherry n’ Lemonade Pop allegedly contains filtered water, white grape juice concentrate, and apple juice concentrate as the top three ingredients, as well as “some lemon juice” and “cherry ... concentrate” as lesser-included ingredient. JonnyPops cited a review that states, “I love the mixture of the sweet tangy flavors from the lemon and cherry juice” and another stating “You can taste the lemon and cherry in them.” [I’m reminded of research indicating that vanilla ice cream tinted pink is perceived by many consumers as strawberry-flavored.] Whether consumers instead understand the packaging to show “critical ingredient[s]” was a fact issue to be resolved after discovery—just as in the Pom Wonderful case.

The court found that it was plausible that consumers believe GoodPop products only or primarily contain the fruit(s) depicted on the packaging, thus making the packaging misleading for products where the fruits in question are not the only or primary ingredient. However, “JonnyPops’s argument that GoodPop’s packaging displays images of whole fruit but does not contain whole fruit is borderline frivolous. As GoodPop argues in its Reply, ‘no customer who sees whole cherries or oranges on a package expects to find stems and peel in the product.’”

The court likewise denied the motion to dismiss counterclaims based on product names. “It is plausible, for example, that consumers are misled by a product being called Cherry n’ Lemonade Pop, when the product contains more grape-based and apple-based ingredients than cherry-based or lemon-based ingredients.”

Finally, JonnyPops alleged that GoodPop’s use of the “USDA Organic” symbol on its packaging misleads consumers into believing its products are healthy. A review of GoodPop’s Orange n’ Cream Pop, which contains eight grams of added sugar stated that the reviewer felt “particularly good about [this popsicle] because it is made of organic ingredients, no refined sugar or high fructose corn syrup, and no artificial dyes.” Another consumer reported that they “love the fact that these pops are organic, dairy free and isn’t loaded with sugars and calories. Taste like the normal thing but way healthier.”

Although I would have gone with preemption, the court found that this wasn’t plausibly misleading. “JonnyPops does not provide the Court with any facts supporting that GoodPops being labelled organic makes consumers think anything other than what the label says—that they are organic…. If JonnyPops’s argument is that a product can be both organic and unhealthy, which is misleading to consumers, then that is an issue inherent with the USDA’s definition of organic— not an issue with GoodPop’s particular use of the ‘USDA Organic’ label.”

The California claims failed because JonnyPops didn’t plead facts allowing the court to draw the reasonable inference that GoodPop engaged in wrongful conduct in California or made false or misleading statements there.