Herr’s Class Action: ‘No Preservatives Added’ Labels Misleading

A new consumer class action lawsuit alleges over a dozen Herr’s snack foods are deceptively labeled as having no added preservatives.

Plaintiff Michelle Hu alleges that snack foods made by Pennsylvania-based Herr Foods Inc. are misleadingly labeled as containing no added preservatives when in fact they contain the “well-known preservative” citric acid.

She is now at the helm of a Herr’s class action lawsuit seeking damages and remedial action.

Hu says she spent $1.09, or possibly more, to buy a bag of Herr’s Honey Cheese Curls for her own personal consumption, allegedly incurring a financial injury by paying a premium price.

She says she would still be willing to buy the products as they are currently made and sold, but only if Herr’s engages in corrective advertising and ceases charging a premium price.

In the Herr’s class action lawsuit, Hu includes a copy of an image purportedly taken from Herr’s website that shows the company’s advertising copy, ingredient list, nutrition information and package imagery for Herr’s Honey Cheese Curls.

The copy describes the product as being made “with only the finest ingredients and [containing] no added preservatives.” On the other side of the image, the ingredient list shows citric acid as one of the ingredients.

Far from being a “natural” ingredient, Hu argues citric acid is a “non-natural, highly chemically processed ingredient regularly used as a preservative.” It creates a highly acidic environment in which bacteria cannot thrive, Hu claims.

The plaintiff further alleges that any purported use of citric acid as a flavoring ingredient is pretextual, as its primary function is a preservative.

According to this Herr’s class action lawsuit, consumers associate natural food products with a healthier way of life and are willing to pay a premium for products on the assurance that they are free from preservatives.

The plaintiff says that by marketing these snack foods as having “No Preservatives Added,” Herr’s has “wrongfully capitalized on and reaped enormous profits from consumers’ strong preference for food products made free of added preservatives.”

In addition to Honey Cheese Curls, Hu takes issue with twelve other particular flavors of Herr’s potato chips, cheese curls, popcorn and onion rings that she says are also deceptively labeled with the phrase “No Preservatives Added.”

Hu claims Herr’s labeling is inconsistent with requirements of the Federal Food, Drug and Cosmetic Act and consumer protection laws of all 50 states and the District of Columbia.

If certified by the Court, Hu’s proposed nationwide Class will represent all Class Members within the U.S. who bought the Herr’s products at issue within the applicable statute of limitations period. She also proposes to represent a New York subclass consisting of all such consumers who are New York residents.

Hu seeks a court order requiring Herr’s to cease its allegedly deceptive actions and to engage in a corrective advertising campaign. She also seeks an award of all actual and statutory damages that she and Class Members may be entitled to, as well as restitution of all profits Herr’s has gained due to its allegedly deceptive advertising.

Plaintiff’s counsel is C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The Herr’s False Advertising Class Action Lawsuit is Michelle Hu v. Herr Foods Inc., Case No. 1:16-cv-03313, in the U.S. District Court for the Eastern District of New York.