Consumers now often prefer naturally-flavored food products and rely on clear labeling to tell what is “natural” from what is “artificial.” This class action alleges that the Frito-Lay company attempted to tout its Salt and Vinegar Chips as having “no artificial flavors,” when in fact the snack does contain artificial flavoring.
The class for this action includes all persons who purchased the Salt and Vinegar Chips from a retailer in California, for personal use and not for resale, from July 3, 2011 to the certification of the class.
The complaint includes a photo of the product’s front and back with the word “flavored” on the front label—but it’s in an unobtrusive font that blends in with the background, while the rest of the label is in bright, saturated colors; and the back of the packaging plainly shows the words “No artificial flavors.”
Ingredient lists on packaging begin with the ingredient and present in the largest amount and descend to the one present in the smallest amount. The complaint contends that, while the ingredient list includes a “salt & vinegar seasoning” containing “maltodextrin [made from corn], natural flavors, salt, malic acid, vinegar,” the presence of vinegar at the very end of the ingredient list means that there is very little vinegar in the product—less than the unspecified “natural flavors” and malic acid.
The complaint alleges that this violates California law in three ways. First, it charges that the additional flavorings overwhelm the small amount of vinegar present, so that the label should disclose the additional flavors instead of claiming that the flavor came simply from vinegar. Second, it says that the generic “malic acid” listing should have used the specific name of the ingredient. Third, the complaint says, rather than having “no artificial flavors,” it contains an undisclosed artificial flavor made from petrochemicals.
California’s Sherman Law defines “natural flavorings” as those that come from “a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant
material, meat, fish, poultry, eggs, dairy products, or fermentation products thereof.” If a flavoring does not meet this definition, it is deemed artificial. While there is a natural form of malic acid, the complaint contends that the product contains a different form, one that’s not at all natural but is reputed to provide a “persistent sour” flavor.
Vinegar is what’s known as the product’s “characterizing flavor.” If the “vinegar” flavor does come from the malic acid, the complaint says, federal and state law requires that the packaging disclose on the front and back that the chips are “artificially flavored.” The complaint thus claims that the product is misbranded, deceptively advertised as containing “no artificial flavors.”