SANTA ANA, Calif. (Legal Newsline) – Class action lawyers told to get to work failed when they did so, a federal judge is being told.
Frito-Lay on Feb. 1 again told California federal judge Josephine Staton to toss a lawsuit that claims its cheddar and sour cream-flavored Ruffles should have the words “artificially flavored” on the front of their bags.
In July, attorneys for Frito-Lay said the case was unsupported by reasonable investigation and told lawyers at The Desai Law Firm “must do at least some work before imposing the heavy burdens of litigation.”
In December, Judge Staton granted that motion to dismiss but allowed plaintiffs lawyers the chance to file an amended complaint, which they did Jan. 11.
“Although the Court granted Plaintiff leave to amend to allege ‘in a manner consistent with all Rule 11 obligations’ that Frito-Lay uses an artificial cheddar cheese flavor, Plaintiff ignored that directive and now contends that the alleged artificial butter flavor (diacetyl) imparts the Product’s sour cream flavor, rather than (as in the original complaint) the cheddar cheese flavor,” the motion says.
“The amended complaint disregards and defies the Court’s Order and should be dismissed on that basis alone.”
Plaintiff Tami 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.
Federal regulations don’t require an “artificial flavors” label, though, Frito-Lay says.
Here, the characterizing flavors are undisputedly cheddar cheese and sour cream. And even if Plaintiff adequately alleged the presence of an artificial butter flavor in the Product (she does not), federal regulations would not require a front-of-pack ‘Artificially Flavored’ label because butter is not a characterizing flavor of the Product,” the motion says.
“The Product’s labels fully comply with federal regulations and thus the amended claims are preempted.”