SANTA ANA, Calif. (Legal Newsline) – Class action lawyers have fired back at Frito-Lay’s allegation that their case over potato chips lacks any evidence.
The Desai Law Firm filed its response to Frito-Lay’s motion to dismiss on Aug. 21 in California federal court in a case that alleges bags of cheddar and sour cream-flavored Ruffles should have the words “artificially flavored” on their fronts.
“The Products’ label makes representations to noe of its ‘distinguishable characterizing flavors,’ cheddar cheese, through the orange colored chips, the block of cheese, the word ‘Cheddar’ and orange label,” the response says.
“The question is simple: If a product contains ‘any artificial flavor which simulates, resembles or reinforces the characterizing flavor,’ it has to be identified in the flavor designation on the front label.”
Tami Svensrud, on behalf of herself and all others similarly situated, filed a complaint in the Orange County Superior Court against Frito-Lay earlier this year, alleging violation of the Consumers Legal Remedies Act, California's Unfair Competition Law, and the California Unfair Advertising Law. The defendant removed the case to federal court on April 10.
Svensrud alleges in her complaint that Frito-Lay is misleading consumers because it does not properly label its Ruffles Cheddar & Sour Cream potato chips in such a way so that consumers can clearly see the product contains artificial flavoring, coloring and chemical preservatives.
Svensrud claims Frito-Lay hides its artificial flavoring by alluding to the wording "artificial flavors" in the ingredient list and buries the word "flavor" in an "inconspicuous location" on the front label.
“This case is a textbook example of a complaint unsupported by reasonable investigation…” the company’s July 24 motion to dismiss says.
“(T)he complaint does not allege any factual support for Plaintiff’s claim that an ‘artificially flavored’ statement is required.”
Frito-Lay also says the lawsuit is preempted by the Food, Drug & Cosmetic Act because the Food and Drug Administration has already regulated when a product must disclose it has artificial flavors on the front of the package.
The disclosure is required when artificial flavors stimulate the characterizing flavors, like cheddar and sour cream on the chips.
The lawsuit does not allege what artificial flavors are associated with cheddar or sour cream, Frito-Lay says.
“Plaintiff must do at least some work before imposing the heavy burdens of litigation on Frito-Lay. The complaint shows that she did not,” the company says.
The Desai Law Firm says Frito-Lay is trying to impose an evidence burden not necessary at this early stage of litigation while rejecting its other claims for dismissal, like preemption under the FDCA.
“When Congress passed the FDCA and its subsequent amendments creating national uniform nutrition labeling, it expressly preempted state law that was inconsistent with its requirements,” the response says.
“However, it did not attempt to completely preempt state laws regarding the marketing of food products.”