In the past five years or so consumers have shown increased concern about perceived health issues with so-called “artificial” ingredients.  Whether or not ingredients are “artificial” is, therefore, a hotly debated issue at the center of many false advertising lawsuits.

On December 5, 2019, a New York federal judge denied class certification to a plaintiff seeking to represent all NY buyers of Pringles Salt and Vinegar chips containing an allegedly false ‘no artificial flavors’ claim because “unwieldy individual issues” predominate over common questions.  As a main issue, the court would have difficulty determining who is a class member because only 4 out of 20 of the Pringles labels contained the ‘no artificial flavors’ claim at issue.  Additionally, there are concerns that the plaintiff may not adequately represent the typical Pringles buyer because he is a chef who may have a unique interest in purchasing foods without artificial ingredients and for whom “price is no object.”  The judge also questioned whether the lawsuit was truly sought for the plaintiff’s own benefit as opposed to the benefit of the lawyers where the plaintiff was alerted to the artificial flavors by his wife, who is an attorney with one of the firms seeking to represent the class.

The denial of class certification in this lawsuit does not settle the merits of the false advertising claims against Kellogg Co. for Pringles made with the alleged artificial flavors, sodium diacetate and malic acid.  We have also reported on a different putative class action lawsuit over ‘natural’ claims where malic acid was alleged to be a synthetic flavor.  Lawsuits over the alleged artificial nature of malic acid and similar ingredients will not likely slow down until FDA regulates the term “natural,” an action which we have reported has been in the works for quite some time with no certain deadline.