Sour taste: Kellogg and PepsiCo’s Frito-Lays sued for alleged false advertising

By Gill Hyslop

- Last updated on GMT

Kellogg and Frito-Lay are facing lawsuits for alleged false advertising on their Salt & Vinegar flavored potato chips. Pic: ©GettyImages/Ramolo Tavani
Kellogg and Frito-Lay are facing lawsuits for alleged false advertising on their Salt & Vinegar flavored potato chips. Pic: ©GettyImages/Ramolo Tavani
A California couple have filed lawsuits against Kellogg Company and Frito-Lay North America alleging the chip makes have deceptively advertised their Salt & Vinegar chips as ‘naturally flavored’.

San Diego County residents Barry and Many Allred contend the packaging of the Pringles and Lay’s Salt & Vinegar chips do not clearly indicate the use of artificial flavorings.

The plaintiffs claim the packaging gives “the impression [consumers] are buying a premium ‘all natural’ product with natural flavoring ingredients, instead of an artificially flavored product.”

Not the real deal

They argued that, although both products contain “actual vinegar,”​ it is “in an amount too small to flavor the products.”

  • In Allred v. Frito-Lay N. Am, the plaintiff alleged that, although the Lay’s label states the product contains malic acid (l-malic acid can be found naturally in fruits and vegetables), Frito-Lay’s uses d-1-malic acid – made from benzene and butane – to produce the sour flavor associated with vinegar.
  • In Allred v. Kellogg, the complainants claimed Kellogg adds both d-1-malic acid and sodium diacetate – manufactured from carbon monoxide and industrial methanol – to attain the sour taste.

The plaintiffs conceded d-1-malic acid may be used under current Generally Recognized As Safe (GRAS) regulations, but argued the use of the general term ‘malic acid’ deceives consumers.

“Having natural products is important to [our clients], and if anything has artificial ingredients, it should be disclosed on the front or package of the bottle,”​ said Ronald Marron who is representing the Allreds.

“If you have a choice to buy chips with real vinegar or malic acid, which would you prefer? Would you be willing to pay more for that vinegar?” ​he added.

Kellogg’s rebuttal dismissed

Last week, a California federal judge denied a motion by Kellogg to dismiss the punitive class action.

The Pringles maker had argued the plaintiffs failed to prove the company used artificial flavouring and the suit was filed as a means to test whether their “guess” was correct during discovery.

However, US district judge Anthony J. Battaglia found the plaintiffs had specified “in great detail the distinction between the natural and artificial versions of the ingredients from how they are made to how they are distinguished on a label.”

He ruled the plaintiffs had sufficiently proven they were misled and could be harmed in the future, successfully establishing a predicate legal violation for a claim under California’s Unfair Competition Law (UCL).

Violation of consumer protection

The plaintiffs are seeking class certification, disgorgement, restitution, damages and attorney’s fees in both suits, claiming violations of California consumer-protection laws and breach of warranty.

Both cases are ongoing.

Kellogg Company’s media spokesperson told BakeryandSnacks the company does not “comment on pending litigation.”

[Awaiting comment from Frito-Lay]

“Cereal companies like Kellogg and other food companies are [becoming] more aware that people want to choose healthier food, so I think as a result of these lawsuits they’re getting better,”​ said Marron.

“Lawsuits like this convey a public benefit because it helps modify the behavior of these corporate titans. The FDA is not doing it.”

Related topics Manufacturers Snacks Kellogg PepsiCo