Lay’s Class Action Lawsuit Says Salt & Vinegar Chips are Mislabeled

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Frito-Lay Inc. was hit with a class action lawsuit alleging the company mislabels its Lay’s chips to dupe consumers into thinking the snack food is “flavored only with natural ingredients.”

Plaintiffs Barry and Mandy Allred claim Lay’s Salt and Vinegar flavored potato chips are labeled as if the product has “No Artificial Flavors,” when it actually contains artificial ingredients.

“Defendants did not simply fail to disclose the artificial flavor,” allege the plaintiffs. “The Product’s label proclaims that it contains, ‘No Artificial Flavors’. This is simply false.”

According to the Lay’s class action lawsuit, Lay’s Salt & Vinegar potato chips contain a “salt & vinegar seasoning” that includes maltodextrin, natural flavors, salt, malic acid, and a minuscule amount of vinegar. But, Lay’s claims that it makes the chip with “just the right balance of tangy vinegar” with an emphasis on “vinegar.”

“[B]ecause the Product contains additional flavoring ingredients that dominate and overwhelm the flavor of the small amount of actual vinegar in the seasoning, the front label is required by law to disclose those additional flavors rather than misleadingly claim that the Product is ‘Vinegar’ flavored,” the Lay’s class action states.

The plaintiffs further allege that Lay’s conceals the fact that the potato chips contain an undisclosed artificial flavor made from petrochemicals, d-l-malic acid. According to the class action complaint, Lay’s deceptively lists malic acid as an ingredient. Malic acid can be a natural ingredient, say the plaintiffs, but Lay’s uses d-l-malic acid, a substance “manufactured in petrochemical plants from benzene or butane— components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts.”

The form of malic acid Lay’s uses in its Salt & Vinegar potato chips has not been extensively tested for its health effects on humans, allege the plaintiffs, but has been shown to confer a consistent sour flavor.

“Although the malic acid that is placed in the Product to simulate the sour flavor of vinegar is the d-l-malic acid—the artificial petrochemical—Defendants pretend otherwise, conflating the natural and the artificial flavorings, misbranding the Product, and deceiving consumers,” argues the class action complaint.

The plaintiffs contend that both federal and state laws require food with artificial ingredients to be labeled as such on both the front and the back of the product.

“Defendants’ Product has neither,” allege the plaintiffs. “The back labeling of the Product, in fact, claims the Product has ‘No artificial flavors’. Moreover, the back labeling also claims, in pertinent part: ‘Then we add just the right balance of tangy vinegar.’”

Lay’s is also currently fighting another class action over allegations that it misbrands its snack food as healthy because they don’t use trans fats to fry up the potatoes which contain vitamins.

The Allreds seek to represent a Class of California residents who purchased Lay’s Salt and Vinegar potato chips within the past six years. The plaintiffs are bringing claims of fraudulent concealment as well as for violations of federal and state law. They are also seeking damages as well as an injunction and an order requiring Lay’s to conduct a corrective advertising campaign.

The plaintiffs are represented by David Elliot of The Elliot Law Firm, and Ronald A. Marron and William B. Richards Jr. of the Law Offices of Ronald A. Marron APLC.

The Lay’s Salt and Vinegar Mislabeling Class Action Lawsuit is Allred v. Frito-Lay North America Inc., et al., Case No. 3:17-cv-01345-JLS-BGS, in the U.S. District Court for the Southern District of California.

UPDATE: On March 7, 2018, a California federal judge denied a motion by Frito-Lay North America Inc. and Frito-Lay Inc. to dismiss a class action lawsuit alleging they falsely advertise Salt and Vinegar Flavored Potato Chips as containing only natural ingredients.