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  • On September 11, 2020, Sheehan & Associates, P.C., filed a class-action lawsuit on behalf of a proposed class of New York consumers against Frito-Lay, Inc., alleging that the company had failed to disclose that their “cheddar & sour cream flavored” Ruffles (potato chips) were artificially flavored.
  • The complaint alleges that diacetyl (2,3 di-butanone) produced in the fermentation of sour cream is primarily responsible for sour cream’s desirable flavor and aroma. The complaint further alleges that the production of high levels of diacetyl requires high levels of citrate, that such levels are found only in cream derived from cows on a pasture diet, and that producers frequently supplement inadequate levels of diacetyl in sour cream derived from feedlot cattle with artificial diacetyl flavor. Further, the complaint alleges that Frito has done exactly that to produce the sour cream flavor of the Ruffles, and, rather than disclose that their product was “Artificially Flavored” as required by 21 CFR 101.22, merely disclosed “Artificial Flavors” on the ingredient list.
  • While this is the first flavor case that we have seen that deals with the alleged addition of artificial diacetyl, flavoring litigation has become a common subject of litigation, and we will continue to monitor and report on developments in this area.
  • On August 25, 2020, Sheehan & Associates P.C., on behalf of a proposed class of New York consumers, filed a class action lawsuit against Family Dollar Stores, Inc., alleging that the company is misleadingly advertising its Eatz-brand Smoked Almonds as “smoke” flavored despite the fact that the almonds have not gone through the smoking food preparation process.
  • Plaintiffs identified “Natural Smoke Flavor” on the ingredient list, and from this disclosure, inferred that the almonds derived their smoke flavor not from the smoking process but from this added natural flavor. Plaintiffs allege that consumers would expect that foods with a “smoke” flavor have undergone an actual smoking process and that Defendant’s product should have been labeled with a qualifying term such as “Naturally Flavored.”
  • This lawsuit is almost identical to another lawsuit recently filed by the same firm regarding a Smoked Gouda Artisan Cheese product sold by Dietz & Watson, Inc. and may be a harbinger of further lawsuits against smoke flavored products. Keller & Heckman will continue to monitor and report on trends in the food litigation space.
  • On August 9, 2020, a class action lawsuit was filed against Hostess Brands, LLC, alleging that the company had deceptively marketed its product as a “carrot cake donette” when in fact it contained no real carrots.
  • Plaintiffs alleged that consumers would expect the product to contain real carrots because it was described as a “carrot cake” without qualifying this name with any of the terms prescribed by the flavoring regulation (e.g. “flavored, naturally flavored, artificially flavored”). They further alleged that it was apparent that the product did not contain any real carrots because the ingredient list did not disclose carrots and instead disclosed that the product contained “natural and artificial flavor.” Plaintiffs alleged that the “natural flavor” meant that at best the product contained an ingredient derived from real carrots, and that, in any case, consumers would not expect the product to contain any “artificial flavor.”
  • Plaintiffs are represented by Sheehan & Associates P.C. which has filed many lawsuits in the food flavoring litigation space, in particular against companies marketing vanilla products. Keller & Heckman will continue to monitor and provide updates regarding class-action litigation in the food industry.
  • On June 26, 2020, Sheehan & Associates, P.C., on behalf of a proposed class of Plaintiffs, filed a class action lawsuit against Hain Celestial Group, Inc. asserting that the company had deceptively labeled its “Organic Plus Vanilla Soymilk” because it (1) contained non-vanilla flavor and (2) disguised sugar as “Evaporated Cane Juice.”
  • On the first claim, Plaintiffs alleged that the ingredient list’s disclosure of “Vanilla Flavor With Other Natural Flavors” indicated that the product contained non-vanilla flavor. Furthermore, they alleged that this non-vanilla flavor contained vanillin. Additionally, they alleged that because vanilla is governed by standards of identity (see 21 CFR 169.175 (“Vanilla extract); 21 CFR 169.177 (“Vanilla flavoring”)), the general flavoring rules of 21 CFR 101.22, including the designation of “with other natural flavors,” do not apply and any non-vanilla flavor must be disclosed as an artificial flavor.
  • As to the sugar claim, Plaintiffs alleged that consumers expect an ingredient with the term “juice” to be derived from a consumable fruit or vegetable, that “evaporated cane juice” “had little in common” with this definition of juice because it was “another name for . . . ‘sugar,”’ and that the choice of labeling resulted in the misleading impression that the product was a better nutritional choice than comparable products.
  • Plaintiffs’ vanilla claim echo a plethora of similar class-action lawsuits, many dozen of which have been filed by the same firm. However, unlike some of these cases, including one that was recently dismissed, Plaintiffs did not solely rely on the declaration of “natural flavors” in the ingredient list to conclude that a non-vanilla flavor was present, but rather specifically allege that the challenged product contains vanillin. Keller & Heckman will continue to monitor and provide updates regarding class-action litigation in the food industry.