9th Circuit Asked to Revive 7-Eleven Potato Chip Class Action

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Earlier this week, a California plaintiff asked the 9th U.S. Circuit Court of Appeals to revive a false advertising class action lawsuit that alleges 7-Eleven Inc. mislabels its store-brand potato chips because it omits legally-required disclaimers about the products’ fat content.

Plaintiff Scott Bishop initially filed the 7-Eleven potato chip class action lawsuit in 2012. He alleges that the potato chip packaging includes “0g trans fat” and “no cholesterol” labels, but they fail to include a statement directing consumers to “See nutrition information for fat content” as required by the U.S. Food and Drug Administration.

Bishop’s legal counsel urged the appellate panel of judges to revive the 7-Eleven potato chip class action lawsuit, which was dismissed for the second time in April 2014. An earlier version of the class action lawsuit was dismissed in August 2013 after a judge found the complaint included allegations that were too vague.

At Wednesday’s oral arguments, Bishop’s attorney told the appellate court that the district court erred when dismissing the 7-Eleven class action lawsuit. He argued that the district court erroneously concluded that 7-Eleven did not mislead consumers into purchasing the store-brand potato chips. The attorney told the appellate panel that 7-Eleven failed to include the legal disclaimer required to include “0g trans fat” and “no cholesterol” representations on the packaging, an omission that he alleges is likely to mislead consumers.

The appellate court judges were not immediately persuaded by the attorney’s argument, finding that a health-conscious consumer would certainly check the nutrition information on the back of the package to get more information about the fat content.

Bishop alleges he purchased multiple packages of 7-Eleven’s potato chips since May 21, 2008. He says he relied on the representations on the front of the packaging and did not read the nutrition information on the back of the bag of chips. Therefore, he believed the potato chips were low in fat, his attorney argued during oral arguments.

One of the judges asked if the lack of disclosure on the front of the packaging could be a material issue if 7-Eleven was required by law to include it.

According to Bishop’s attorney, the California legislature has not determined that the nutrition panel notice needed to be included on certain food packaging. However, the state had adopted all federal food labeling regulations up until the 2012 passage of the Sherman law, but this was prior to the FDA’s 2013 release of food labeling guidance about nutrient claims.

The 9th Circuit has not yet issued an opinion about whether or not to revive the 7-Eleven potato chips class action lawsuit. Keep checking TopClassActions.com or sign up for our free newsletter for the latest updates. You can also mark this article as a “Favorite” using your free Top Class Actions account to receive notifications when this article is updated.

Bishop is represented by Pierce Gore of Pratt & Associates and David M. McMullen Jr. of Barrett Law Group PA.

The 7-Eleven Potato Chips Class Action Lawsuit is Scott Bishop v. 7-Eleven Inc., Case No. 14-15986, in the 9th U.S. Circuit Court of Appeals.

UPDATE: On June 7, 2016, The Ninth Circuit Appeals Court granted plaintiffs’ motion to revive a class action lawsuit against 7-Eleven alleging the store falsely labeled the nutritional value of its store-branded potato chips.