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, 2025WL 3182084, No. 1:24-CV-716-RP (W.D. Tex. Mar. 13, 2025)

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

JonnyPops boxes

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

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

JonnyPops boxes with same flavors as Goodpop boxes

First, JonnyPops argued that the images of fruit do notmislead consumers when viewed in context of the entire package, because thefruit images indicate flavors, rather than ingredients, especially incombination 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 ‘doesnot eliminate the possibility that reasonable consumers may be misled.’” Misleadingnesswas plausible. Nor were the pictures and the “simple ingredient” claimnon-actionable puffery. The statements at issue here, especially the pictures, weren’texaggerated in the way typically associated with non-actionable puffery: wordslike “best,” “better,” and “favorite.” Even if “simple” may be subjective, itwas the phrase “simple ingredients” in combination with the fruit pictures andthe rest of JonnyPops’s advertising that allegedly misled consumers; thatcontext made the claim plausibly misleading.

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

The consumer reviews also plausibly showed materiality.E.g., consumers believed and cared about claims that the pops have “a lowersugar content and appear[] to be a better for you[] product tha[n] your typicalpop” and are “made of all natural ingredients and had good nutrition comparedto 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 stockeither GoodPop or JonnyPops in their better-for-you section, retailers havechosen JonnyPops due to its deceptive sales presentations, because JonnyPops isnot truly a better-for-you product.” For example, “when JonnyPops began sellingnext to GoodPop as a better-for-you product in one health grocer, GoodPops’ssales velocity declined by about 25%.”

The state law claims survived for the same reason; it was okto assert California claims in Texas because the alleged wrongful conductoccurred in California.

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

The parties compete in the market for “ice pops.” GoodPop suedJonnyPops under the Lanham Act and also for violations of California’s unfaircompetition law. JonnyPops counterclaimed under the same laws, alleging thatGoodPop has “duped consumers into thinking that its products are nutritionallysuperior to other ice pops, including JonnyPops’s products.” The court refusedto 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 “containcane sugar, which is always refined to some extent,” citing definitions of “rawsugar,” “sugar,” and “cane sugar.” It alleged that four consumer reviews showedconsumer belief and reliance. The court found that, at this stage, it wouldaccept the claim that cane sugar is refined sugar. Thus, JonnyPops had allegedactual falsity and didn’t have to provide separate evidence ofdeception/materiality; in the alternative, three of the alleged online reviews “specificallyrefer to GoodPop’s products not containing refined sugar, which make itplausible that GoodPop’s alleged deception is material.”

refined sugar claim on box

Second, JonnyPops alleged that GoodPop’s website makes thefalse 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 notcontain any fruit, and (2) some GoodPops that do contain fruit ingredients aremade with fruit-juice concentrates and other additives, rather than “wholefruit, juices or purees.” It quoted seven online consumer reviews that mentionGoodPops containing 100% fruit juice.

Cherry n' Lemonade flavor

First, it wasn’t plausible that consumers would be deceivedby 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 Popand Star Wars Green Apple Lightsaber Pops allegedly “consist largely offruit-juice concentrates and other additives, rather than whole fruit, juices,or purees.” Aaccepting as true JonnyPops’s allegation that fruit juiceconcentrate is not a type of whole fruit, juice, or puree, that was enough toplead literal falsity; several cited reviews positively reference GoodPop’sCherry n’ Lemonade Pop being made with “100% real juice.”

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

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

The court found that it was plausible that consumers believeGoodPop products only or primarily contain the fruit(s) depicted on thepackaging, thus making the packaging misleading for products where the fruitsin question are not the only or primary ingredient. However, “JonnyPops’sargument that GoodPop’s packaging displays images of whole fruit but does notcontain whole fruit is borderline frivolous. As GoodPop argues in its Reply, ‘nocustomer who sees whole cherries or oranges on a package expects to find stemsand peel in the product.’”

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

Finally, JonnyPops alleged that GoodPop’s use of the “USDAOrganic” symbol on its packaging misleads consumers into believing its productsare healthy. A review of GoodPop’s Orange n’ Cream Pop, which contains eightgrams of added sugar stated that the reviewer felt “particularly good about[this popsicle] because it is made of organic ingredients, no refined sugar orhigh fructose corn syrup, and no artificial dyes.” Another consumer reportedthat they “love the fact that these pops are organic, dairy free and isn’tloaded with sugars and calories. Taste like the normal thing but wayhealthier.”

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

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