Antitrust Law Daily Wrap Up, ADVERTISING—D. Conn.: Snack maker must face misleading packaging suit for failure to warn of lead, (Jul 10, 2026)

By Jody Coultas, J.D.

The purchase of a product the consumer would not have bought absent the allegedly misleading packaging was a sufficient economic injury to confer standing.

The federal district court in New Haven, Connecticut declined to dismiss a case alleging that LesserEvil, LLC misleadingly advertised its Lil’ Puffs Kids Snacks as only including wholesome and healthy ingredients despite the presence of lead. LesserEvil sought dismissal of the suit, arguing that the labeling was not deceptive, that the consumer was not harmed by the alleged misrepresentations, and that the claims were preempted by federal law. The court found that a reasonable consumer could have been misled about the presence of lead in the snack product, and that the consumer sufficiently alleged she suffered an economic injury by purchasing a product she would not otherwise have purchased. Furthermore, the court found that the claims were not preempted by the federal Food, Drug, and Cosmetics Act (FDC Act), nor did the court need to confer jurisdiction over the issues at hand to the FDA (Augustine v. LesserEvil, LLC, No. 3:24-CV-01309 (SFR) (D. Conn. Jul. 8, 2026)).

LesserEvil makes kids snack products, including Lil’ Puffs Kids Snacks. The product is advertised as “air-puffed healthy snacks for kids” that claim to be made “with a blend of seven wholesome vegetables so you and your toddlers can (super) power through the day.” The packaging also states that Lil’ Puffs are “Clean Label Certified” and that consumers “can trust that we’ve taken every measure to ensure it’s a safe and high-quality product” that has passed “rigorous third-party testing.”

A consumer alleged that the packaging and marketing for Lil’ Puffs was misleading because the product contains lead, a toxic metal that is not safe for consumption by children at any levels. In July 2024, an independent laboratory tested samples of LesserEvil Lil’ Puffs Kids Snacks for lead; each came up positive. One result showed that the Lil’ Puffs contained 346.793 parts per billion of lead. Just one serving contained 2.427 micrograms of lead, exceeding the maximum allowable daily dose level set by the state of California (0.5 micrograms). The consumer alleged LesserEvil’s advertising and product packaging violated the Connecticut Unfair Trade Practices Act, Illinois Consumer Fraud and Deceptive Business Practices Act, and the Magnuson-Moss Warranty Act (MMWA).

LesserEvil moved to dismiss, arguing the consumer failed to plausibly allege that she was misled, that the consumer cannot supplant the role of the FDA in regulating ambient lead in food, and that the consumer lacked standing.

Misrepresentations. The consumer plausibly alleged that she was misled by the Lil’ Puffs packaging and marketing, according to the court. LesserEvil argued it had no obligation to disclose the content of ambient lead in its products and that it was implausible that the consumer believed that the products were free of all trace amounts of lead. Despite that argument, the complaint alleged more than mere trace amounts. The court found that a significant portion of the public might have relied upon the marketing at issue to believe the products did not contain lead, particularly at the levels alleged in the complaint. Multiple courts in the Second Circuit have held that similar allegations allege a plausible claim of misrepresentation, the court noted.

The court also found that the claims at issue were not mere puffery. Puffery includes generalized or exaggerated statements which a reasonable consumer would not interpret as a factual claim upon which he could rely. A reasonable consumer could interpret LesserEvil’s statements as representations about the quality and safety of the Lil’ Puffs ingredients, and, more specifically, an absence of lead.

Preemption. The state law claims were not preempted by the FDC Act, according to the court. Congress amended the FDC Act with the Nutrition Labeling and Education Act (NLEA), which strengthened the FDA’s authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods. The NLEA’s express preemption provision forbids the states from directly or indirectly creating any requirement made in the labeling of food that is not identical to the federal labeling requirements established by certain specifically enumerated sections of the FDC Act. However, the NLEA preemption provision does not apply to prohibitions on false or misleading labeling. Because the claims at issue were directly related to false and misleading labeling, the FDC Act did not preempt the suit. Further, the fact that the FDA does not require the disclosure of lead did not mean the consumer’s mislabeling claims were preempted.

FDA primary jurisdiction. Because the case was based on misleading labels, an area of primarily judicial notice, the court declined to dismiss the case under the primary jurisdiction doctrine. LesserEvil argued that this case should be dismissed because the inquiry into lead exposure falls under the “primary jurisdiction” of the FDA. In determining whether to dismiss a case in deference to an agency, a court considers the following factors: (1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made. Here, the central issue of the case was misleading labeling, which depends on the specialized experience of courts rather than the specialized experience of the FDA. There was little risk that the FDA will issue a ruling about the central issue in this case, whether the snack maker’s labels are misleading about the presence (or risk) of lead.

Standing. The consumer alleged she suffered an economic injury sufficient for standing, according to the court. LesserEvil argued that the consumer lacked standing because she has not sufficiently pleaded facts to show the specific products she and her children consumed contained lead, or that she suffered any injury from their consumption. The court rejected both arguments. There was a sufficient possibility that the consumer purchased products that contained lead based on the third-party testing. Also, the consumer spent money to purchase the products that she would not have otherwise spent and overpaid for the products because they are sold at a price premium due to LesserEvil’s misleading advertising. The consumer was not required to point to any specific, cheaper comparator to sufficiently allege she paid a premium for LesserEvil’s products.

Warranty claims. Because the complaint did not include at least 100 named plaintiffs, the MMWA did not confer original jurisdiction to hear the MMWA claim. However, the consumer asserted jurisdiction under the Class Action Fairness Act (CAFA) for the MMWA claim. The court concluded that it had jurisdiction over the MMWA claim under CAFA, and, even if it did not, the court could exercise supplemental jurisdiction over the MMWA claim.

The court noted that the parties devoted little space in their briefs to a discussion of the adequacy of the written warranty claim under the MMWA. For purposes of this motion to dismiss, the court allowed the MMWA claim based on written warranty to proceed. LesserEvil may renew its arguments with respect to the adequacy of this claim at the summary judgment stage of this case.

Finally, the court noted it was unclear from the briefing to what extent LesserEvil maintains that the claims for express or implied warranty were insufficient under Illinois law. To the extent LesserEvil wishes to pursue such arguments, LesserEvil may do so in a summary judgment motion.

Injunctive relief. The court dismissed the claim for injunctive relief because there was no possibility of future injury as the consumer will not be misled by the packaging in the future.

The case is No. 3:24-CV-01309 (SFR).

Judge: Russell, S.

Attorneys: Craig A. Raabe (Izard, Kindall & Raabe LLP) for Elise Augustine. Amelia Courtney Hritz (BraunHagey & Borden LLP) for LesserEvil LLC.

Companies: LesserEvil LLC

Cases: Advertising ConnecticutNews