Kellogg Can’t Put Pringles Class Action Back in the Can
Court sides with plaintiffs who are upset over allegedly undisclosed artificial ingredients
Oh, Pringles! Joy of many, you are the chip that subtly markets yourself as addictive. (“Once you pop, you can’t stop!” and “You’ve got the fever for the flavor of a Pringles!”) Your packaging, a cardboard tube, is specifically designed to ensure that the chips inside don’t get crushed or broken in transit, the way a normal “bagged” potato chip might. (Thank you!) And, unlike bags, these tubes can be stacked. (“Other potato chips just don’t stack up!”) And your mascot, one Julius Pringles, boasts a handlebar mustache that any Williamsburg hipster would envy.
Clearly, Pringles has a stellar marketing profile. The folks at Kellogg Co. must be proud.
But what if someone decided to call Kellogg out for false advertising?
Diacetate of the Earth
That’s exactly what Barry and Mandy Allred, a married couple from San Diego, did back in May 2017 when they launched a class action against Kellogg Co. in California Superior Court. The packaging, labeling and advertising of Kellogg’s Pringles Salt & Vinegar Flavored Potato Crisps, the pair alleged, violated a number of California consumer protection laws.
Central to their complaint was the claim that the salt and vinegar prominently displayed on the product’s front label misled customers – who were actually eating artificial flavoring and only trace amounts of real salt and vinegar. The proof, the Allreds asserted, was plainly printed on the back of the Pringles can, which listed, for example, sodium diacetate and malic acid as ingredients, ahead of actual vinegar.
The Allreds claimed misleading labeling, incorrect use of the generic term “malic acid” and failure to disclose on the front label that the product contained two artificial flavors. The suit was brought under California’s Consumers Legal Remedies Act, Unfair Competition Law and False Advertising Law, and accused Kellogg of breach of express and implied warranties.
Kellogg answered the suit with a motion to dismiss the case, which was summarily denied by the court in February 2018.
The court seemed to take more exception to the timing of the motion than the arguments made in it. “Although Kellogg makes well-founded arguments,” the court held, “those arguments are better suited for a summary judgment motion. At this stage, the Court is bound to determine Allred’s facts as true, and finds the complaint states a claim.”
For instance, Kellogg claimed in its motion that the Allreds had failed to prove that artificial ingredients were used more prominently than natural ones. “Kellogg accuses Allred of filing a lawsuit to get discovery to see if their guesses are correct,” the court summarized, “[but] unlike [Kellogg’s supporting case], Allred narrated the what, how, and why with particularity in the complaint.”
As for Kellogg’s argument that a reasonable consumer would not be deceived by the product’s name because it is factually true (Salt & Vinegar Flavored Potato Crisps), at this stage in the procedure, the Allreds’ allegations must be posited as true, and reasonable consumers might be deceived. In a hunger-provoking conclusion, the court held that “[t]he image certainly gives an impression of freshly baked chips where the salt flavoring comes from the sprinkled salt and the vinegar flavoring comes from the bottles” and what a reasonable consumer would find from this imagery is a question for the jury.
This case is yet another example of labeling claims, and this one raises the role of images as potentially conveying a false or deceptive claim. Claims can be express or implied, and what is important is the net impression of the reasonable consumer.