Hold onto your chips. 

This blog has covered an array of dubious mislabeling theories, but a recent complaint filed in Illinois federal court may take the guac: a proposed class-action complaint against Frito-Lay North America, Inc. (“Frito Lay”) alleges that Frito-Lay’s “Hint of Lime” Tostitos are misleadingly packaged because the chips—which prominently display the phrase “HINT OF LIME” on the front of the bag—contain only a “negligible amount” of lime.  As the complaint itself recognizes, that consumers understand the word “‘hint’ the same way as its dictionary definition – a slight but appreciable amount.”  Compl. ¶ 13.[1] But rather than deliver a hint of lime, the complaint alleges, the chips contain only lime flavoring—or a de minimis amount of lime.  In other words, the hint of lime label is misleading because…the chips only contain a hint of lime.  You read that right.

Doubling down on this outrage, the complaint further alleges the front-label representation instructing chip connoisseurs to “Squeeze in More Flavor” gives the impression that the product contains squeezed lime ingredients as opposed to simply lime flavoring.  Compl. ¶ 14.  And, per the complaint, the rear label does nothing to remedy this alleged deception because the term “Natural Flavors” (which appears in the ingredients list) fails to alert chip consumers that the product’s “taste is not only from limes and has a negligible amount of lime.”  Compl. ¶¶ 21-26 (label excerpted immediately below).

Looking Ahead: The Chips Will Fall Where They May

The Frito-Lay suit touches on many of the legal issues that the Misbranded blog has reported on previously.  We have covered numerous cases where plaintiffs have proffered a tortured meaning of ordinary words and phrases to concoct a case of mislabeling.  For example, just last year, we surveyed certain district court decisions dismissing consumer class action complaints alleging that baking chips and candies advertised as “white” falsely imply the presence of actual white chocolate.  At the pleading stage, those courts were willing to find that the consumers’ interpretation of the challenged labeling claim was unreasonable as a matter of law.

Here, even assuming reasonable consumers would be misled by the phrase “hint of lime” in this context—a highly suspect assumption—a further question arises: can the ingredients list presented on the back of the bag remedy any potential consumer confusion?  We have blogged about this issue frequently as well, most recently in the context of grated cheese where the Seventh Circuit held that an accurate list of ingredients does not foreclose as a matter of law a claim that an ambiguous front label would deceive a reasonable consumer.  Bell v. Publix Super Markets, Inc., 982 F.3d 468, 476 (7th Cir. 2020).  But numerous other courts have reached the opposite conclusion.  For example, in Jessani v. Monini North America, Inc., 744 F. App’x 18 (2d Cir. Dec. 3, 2018), the Second Circuit found that it was “simply not plausible that a significant portion of the … public acting reasonably would conclude” that a truffle-flavored olive oil product was made with actual truffles—“particularly … given that the product’s ingredient list contains no reference to the word 'truffle.'" Id. at *19.

The case will also inevitably call into question the meaning of “natural” and “natural flavors”—another hot-button topic for courts.  Notably, under federal regulation, the term “natural flavor” means “the essential oil, oleoresin, essence or extractive, protein hydrolysate, distillate, or any product of roasting, heating or enzymolysis, which contains the flavoring constituents derived from a … fruit … whose significant function in food is flavoring rather than nutritional.”[2] Plaintiffs in the Frito-Lay case have tried to cast “natural flavors” in the ingredients list as a concession that the chips’ lime component is only for “flavoring” purposes—which plaintiffs further interpret as being incompatible with the chips containing “a hint of lime.”  This argument is curious, to say the least: it is unclear why chips flavored to taste like lime cannot reasonably be described as containing a “hint of lime.”  One just might say that is precisely the way to describe such a product.

These issues will all likely be the subject of further legal debate before the district court.[3] Until then, stay tuned.