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Kettle’s ‘reduced fat’ chip lawsuit to continue

By Kacey Culliney+

Last updated on 11-Aug-2014 at 15:18 GMT2014-08-11T15:18:41Z

The judge dismissed claims made against Kettle over its 'reduced fat' messaging because the complainant failed to prove what statements he had relied on ahead of purchase
The judge dismissed claims made against Kettle over its 'reduced fat' messaging because the complainant failed to prove what statements he had relied on ahead of purchase

Diamond Foods has been granted partial dismissal on claims made against its use of ‘reduced fat’ messaging on Kettle chips, but the complainant has been given time to amend his case.

On July 31, 2014, US District Judge Maxine Chesney dismissed claims that Kettle’s reduced fat sea salt crisps carried ‘false’ and ‘misleading’ claims and that its promotional materials and website made false and deceptive statements.

However, the complainant – who also took issue with ‘all-natural’ claims on Kettle’s backyard barbecue chips – was given until August 15 to amend his case.

A case management conference date was set for October 31, 2014 and will decide whether to set the case for trial or deal with the claims via an alternative route.

What statement was relied on before purchase?

Richard Hall filed a complaint over Kettle’s ‘40% reduced fat potato chips’ claim on its sea salt variety, claiming it was false and deceptive.

On some packs, the Kettle packs carried the statement - ‘40% less fat than regular potato chips’.

Hall argued that when compared to its regular Kettle brand chips, the difference in fat was only 33%. He claimed the statement was deceptive because regular potato chips were “an inappropriate reference food”.

However, Diamond Foods called for the claims to be dismissed because the complainant had not specified which statement he read or relied upon before purchasing the chips.

The judge found in favor of Diamond on this point as the complaint was not a breach of section 17200 under the California Business & Professions Code. “As the California Supreme Court has held, a plaintiff who challenges the lawfulness of a statement made on a consumer product may seek relief under section 17200 only where such plaintiff was ‘deceived by [the] product’s label into spending money to purchase the product, and would not have purchased it otherwise’,” the court document read.

However, the judge gave leave to the complainant to amend his claim – to identify the statement or statements that he relied on when he purchased the chips.

Claims against Kettle were made over all-natural messaging on its backyard barbecue variety

All-natural confusion?

In another part of the case against Kettle, the complainant claimed there were ‘false’ and ‘deceptive’ on-pack statements  on its Kettle Brand backyard barbecue potato chips like ‘absolutely nothing artificial’, ‘all natural potato chips’ and ‘real food ingredients’ despite the chips containing color additives like citric acid, maltodextrin and paprika extract.

However, Diamond Foods argued that such statements would not mislead a reasonable consumer because the ingredients list contained each ingredient in question.

It added that the plaintiff should have put forward a uniform definition of what ‘all-natural’ may mean to a reasonable consumer.

While the judge disagreed with the ingredients list defense and the need for a uniform definition – refusing dismissal of the claims – she ruled that the all-natural claims could not be resolved at this stage of the proceedings.

“A false advertising claim, whether brought under section 17200, section 125000 or the CLRA, is governed by the reasonable consumer test. Under the reasonable consumer standard, [the plaintiff] must show that members of the public are likely to be deceived,” the court paper read.

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