The suit is the latest in a recent wave of class actions in which big food brands have been targeted over quite specific technical breaches of federal labeling legislation, as well as alleged violations of California consumer protection laws.
Products might contain 0g trans fat, but also contain disqualifying levels of total fat
In the latest complaint, PepsiCo, which has already been targeted in several class actions over its ‘all natural’ claims on chips using genetically modified ingredients, is accused of making “improper nutrient content claims” on its snacks.
In the action, filed in the US District Court for the Northern District of California, Oakland Division, against Frito-Lay North America and parent company PepsiCo, plaintiff Markus Wilson argues that the defendants have “repeatedly made improper nutrient content claims on products containing disqualifying levels of fat, saturated fat, cholesterol or sodium”.
Products are misbranded under federal and state law
Under federal and state law, firms making a 0g trans-fat claim (which is a nutrient content claim) on products that have more than 13g of fat, 4g of saturated fat, 60mg of cholesterol or 480mg of sodium per 50g serving must also include a statement directing consumers to the nutrients that exceed these limits.
For example, in the case of Lays Classic chips, which bear a ‘0 grams trans fat’ claim, Frito-Lay should have included an adjacent disclaimer stating ‘See nutrition information for fat content’, because they also contain more than 13g of total fat per 50g, argues the plaintiff.
“Defendants’ misbranded food products’ packaging prominently makes ‘0 grams trans fat’ claims despite disqualifying levels of fat that far exceed the 13g disclosure threshold,” notes the complaint.
The fact that the oils used in the chips – which have been extensively reformulated to reduce saturated and trans fat – contain more good than bad fats (they are higher in mono-unsaturated fats), is irrelevant from a legal standpoint, notes the complaint.
Issue has been repeatedly raised in FDA warning letters
The Food and Drug Administration (FDA) has repeatedly warned the industry about the conditions of use for making nutrient content claims such as ‘0 grams trans fat’, adds the plaintiff, who is represented by legal firm Pratt & Associates.
“The FDA has sent warning letters to the industry including many of the defendants’ peer food manufacturers, for the same types of improper 0 grams trans fat nutrient content claims described above.”
It adds: “The warning letters are hardly isolated, as the FDA has issued at least nine other warning letters to other companies for the same type of improper 0 grams trans fat nutrient content claims at issue in this case.”
PepsiCo did not respond to requests for comment.
However, lawyers contacted by this publication said the case highlighted the growing threat of civil litigation from opportunitistic plaintiffs' attorneys that are scrutinizing food packaging looking for technical breaches of labeling laws as well as 'all-natural' claims and unsupported structure/function type claims.