• On December 6, a complaint was filed in the Southern District of New York against the owners of PopChips, VMG Partners LLC. The proposed class action alleges that the labeling of “Cheddar and Sour Cream” PopChips is misleading to consumers. Named plaintiff, John Salony, told the court that when consumers see the flavors “cheddar & sour cream” on a label without qualifiers like “naturally flavored,” “other natural flavors,” or “artificially flavored,” consumers expect the product to be primarily, if not entirely, flavored by the actual characterizing ingredients.
  • Salony stated that while the product contains some cheddar cheese, it also contains added cheddar cheese flavor as indicated by the listing of “natural flavors” in the ingredient list.  According to the complaint, “natural flavors” are added because the amount of cheddar cheese is insufficient to independently provide the product with a cheddar taste, and therefore, the front label should have disclosed the added cheddar flavoring in accordance with FDA’s flavoring labeling at 21 CFR 101.22(i)(1)(i).
  • Additionally, Salony alleged that the label failed to disclose that the product contained no real sour cream, thereby misleading consumers who “want real sour cream because even when consumed in small amounts, it contributes to beneficial health effects.” The complaint listed the following sour cream health benefits: helps to establish and maintain beneficial intestinal bacterial flora and reduce lactose intolerance; has high mineral content (i.e., phosphorus and calcium); contains Vitamin B12 which helps preserve nerve cells and maintain red blood cells; and contains Vitamin A which helps promote eye health, and increases the body’s immunity.
  • The complaint states that PopChips’s branding, marketing, and packaging is designed to deceive, mislead, and defraud consumers, and that VMG Partners sold more of the product and at higher prices because of the deceit. In the suit, Salony intends to represent all buyers of PopChips who live in New York, and brings claims under the state’s consumer protection statutes, as well as claims for negligent misrepresentation, breach of express and implied warranty, fraud, and unjust enrichment. Notably, Salony’s attorney, Spencer Sheehan, is representing another consumer making similar claims against Frito-Lay’s Ruffles Cheddar & Sour Cream Flavored Potato Chips.

Keller and Heckman will continue to monitor any developments.