Flavoring Lawsuit Targets “Hint of Lime” Tostitos
On May 11, 2021, a proposed class-action lawsuit was filed against Frito-Lay, alleging that its “Hint of Lime” Tostitos were misleadingly labeled because they contain only “Natural Flavors” and not appreciable amounts of lime.
In addition to the “Hint of Lime” designation, the front of the package also recommends that consumers “Squeeze in More Flavor With Some Salsa.” Plaintiff argues that these statements mislead consumers into believing that actual lime is squeezed into the product when in fact it contains only “natural flavors” according to the ingredient list.
Plaintiff’s argument appears to require accepting that a reasonable consumer would expect that a product with a “hint” of lime would contain more lime than that contained in “natural flavors” and ignores the fact that the “squeeze in” statement references salsa; while the “squeeze” may be a reference to squeezing lime, there is no doubt that the statement is more intelligible when read with the understanding that the salsa (not the lime) is adding flavor to the Tostitos.
Furthermore, according to the federal flavor labeling regulation, a product may be designated as “flavored” [with the ingredient in question] where it “contains natural flavor derived from such ingredient and an amount of characterizing ingredient insufficient to independently characterize the food.” In other words, a product can be lime-flavored where it is only flavored with “natural flavoring” derived from lime. Plaintiff characterizes a “Flavored Tortilla Chips” statement in the bottom corner of the packaging as a “disclaimer,” but alleges that this statement is hidden from the consumer’s view by the crumpling of the packaging; it is not clear what “disclaimer” is needed since it is readily apparent that Tostitos are a lime-flavored product and not a product containing lime for nutritive value.
This is yet another case filed by Spencer Sheehan and associates, a firm well-known for filing class actions in the food litigation space. Keller and Heckman will continue to monitor and report on this case and other flavoring litigation.