Health Law Daily Wrap Up, LABELING AND PACKAGING (FOOD, DRUG & MEDICAL DEVICES)—N.D. Cal.: Suit alleging deceptive packaging of Campbell’s ‘Air Fried’ Kettle Chips dismissed, (Sep 6, 2024)

By Donielle Tigay Stutland, J.D.

The court concluded that the product’s labeling would not be likely to deceive a reasonable consumer.

A federal court in California dismissed a class action lawsuit which alleged that Campbell Soup Company deceptively labeled and advertised its Kettle Brand “Air Fried” potato chips. A consumer brought a suit alleging that the Kettle Brand Air Fried potato chips (the Product) were deceptively labeled because they are cooked in oil and not solely air fried, and he alleged that had he known the Product was “actually fried in a vat of oil,” he would not have purchased the Product. The court dismissed the case finding that the labeling on the Products packaging would not be likely to deceive a reasonable consumer. Wrote the court, “Because the front label discloses that the Product is kettle cooked, Plaintiff’s case, too, is fried” (Husain v. Campbell Soup Company, No. 24-cv-01776-CRB (N.D. Cal. Sept. 2, 2024)).

Background. Campbell Soup Company manufactures, markets, distributes, and sells potato chips under the “Kettle Brand” name, including some labeled as “Air Fried.” The Product’s front label states the Product is “Air Fried,” however, underneath that statement the words “Kettle Cooked Air Finished” are printed. A consumer brought suit alleging that the Product is actually “cooked by means of an oil fryer, a method typically used to cook traditional potato chips,” and that the “Air Fried” label is therefore false and misleading.

The class action alleges claims under California’s: (1) Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq.; (2) False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500 et seq.; and (3) Consumers Legal Remedies Act (CLRA), Cal. Civ. Code §§ 1750 et seq. Campbell filed a motion to dismiss the claims.

False labeling claim. The court began its analysis by stressing that under California consumer protection laws, a plaintiff must plausibly allege that “members of the public are likely to be deceived.” The court also noted the in McGinity, the Ninth Circuit held that a front label’s ambiguity can be resolved on a motion to dismiss by reference to the back label. “[T]he front label must be unambiguously deceptive for a defendant to be precluded from insisting that the back label be considered together with the front label. Here, when looking at the Product’s front label the court found it was not ambiguous. Moreover, the court concluded the front label “is not deceptive at all.”

The consumer argued that the Product’s label is misleading because of the “Air Fried” representation on the front label. He argued this suggests that the Product is “entirely” cooked by an air fryer and not cooked in oil. But the court pointed out that, while the label does state that the Product is “Air Fried,” immediately below that representation—in the same text box—is the statement that the Product is “Kettle Cooked Air Finished.” Given this additional representation, the court did not find it plausible that reasonable consumers would be deceived into thinking that the Product is “entirely” air fried. The court determined that reasonable consumers would interpret the Product’s use of “kettle cooked” according to its commonly understood meaning—that is, a traditional method of cooking potato chips in kettles with oil. The court found that “the representations on the Product’s front label are not plausibly false or misleading.” To the contrary, the court highlighted that front label explicitly states the Product is “kettle cooked” before it is “air finished,” which conveys that it is not exclusively air fried and is cooked with oil.

Moreover, the court stressed that even if it had found the front label ambiguous, the Product’s back label resolves any ambiguity. The court determined that after reading the back label, “it would be clear to a reasonable consumer that the cooking process for the Product involves two steps—first, cooking in kettles and then air frying—and thus, that it is not exclusively air fried.” Finally, the court pointed out that the ingredients list would resolve any remaining ambiguity, by including oil in its list. The court found that even if the Product’s front label is ambiguous, it is not plausible that the Products full packaging would be likely to deceive a reasonable consumer.

The court granted the motion to dismiss the case.

This case is No. 24-cv-01776-CRB.

Judge: Breyer, C.

Attorneys: James M. Pazos (James M. Pazos, Attorney at Law) and Craig Richard Smith (Smith Law Firm) for Syed Husain. Dale Joseph Giali (King & Spalding LLP) for Campbell Soup Co.

Companies: Campbell Soup Co.

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