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From Health Law Daily, March 7, 2019

Too early to decide preemption in potato chip flavor labeling dispute

By Jeffrey H. Brochin, J.D.

The court intended to invoke the continuous accrual doctrine in its prior order rather than the continuing violation doctrine, thereby time-barring certain claims.

A federal district court in California has granted in part and denied in part motions to dismiss filed by Frito-Lay, Inc., (Frito-Lay) manufacturers of "Salt and Vinegar Flavored Potato Chips" in a class action lawsuit filed by consumers of the product who alleged that its label was misleading under California law as to identification of a flavor enhancer. The court ruled that the consumers met their pleading burden because it was not implausible that malic acid imparts a vinegar flavor to the product and acts as a flavor enhancer. The court determined that it is inappropriate to determine whether malic acid is a "flavor" at the motion-to-dismiss stage, and court ruled that it would be premature to determine the federal preemption issue at this stage (Allred v. Frito-Lay, Inc. March 5, 2019, Sammartino, J).

Malic acid dominates vinegar. Consumers of the potato chip product alleged that it was labeled as only containing natural ingredients but that it was in fact flavored with a chemical called malic acid, and that the minimal amount of actual vinegar in the product’s flavoring was dominated by the unspecified ‘natural flavors’ and malic acid, and that the vinegar content was of insufficient quantity to flavor the product. Although there is a naturally occurring form of malic acid, l-malic acid, the consumers alleged that Frito-Lay instead flavored the product with an industrial chemical called d-l-malic acid which is in fact manufactured in petrochemical plants through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts.

Frito-Lay’s motions to dismiss. On August 9, 2017, Frito-Lay moved to dismiss the original complaint on the grounds that (1) the claims were preempted by the Food, Drug, and Cosmetic Act (FDC Act) (21 U.S.C. §301 et seq) and accompanying federal regulations; (2) failure to state a claim as to any of the causes of action the complaint did not plausibly plead that a reasonable consumer would be deceived by the labeling of the product; (3) the allegations were insufficient to support claims under the Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL) and False Advertising Law (FAL); (4) the breach of express warranty claims failed because they did not plausibly allege that any statements on the product’s label were false; (5) the breach of implied warranty claims failed because the complaint did not allege that the product was unfit for its purpose, human consumption, or did not possess even the most basic degree of fitness for ordinary use; and (6) the claims were partially barred by the applicable statutes of limitations.

Preemption premature. In response to the assertion that the company must refer to the "specific" name of "d-l-malic acid,"-- the court previously concluded that 21 C.F.R. §184.1069(a), the regulation on malic acid, states that the ingredients (plural) are used in food, and that therefore, it was plausible that DL-malic and L-malic acid are specific names of the collective, common name malic acid. Consequently, the court could not conclude at that stage whether the claim was preempted.

As to Frito-Lay’s instant argument that the parenthetical confirms that "malic acid" is the "common or usual name"—and therefore the name that mustbe included in the ingredients list under 21 U.S.C. § 343(i)— the court stated that it was not opposed to revisiting its prior conclusion concerning the proper reading of the regulations at issue. However, the court found that there remained questions concerning the applicable regulations and that it remained inappropriate and would be premature to determine whether malic acid is a "flavor" at the motion-to-dismiss stage.

The court noted that the complaint alleged that malic acid imparts a vinegar flavor which provides the vinegar flavor of the product rather than actual vinegar. Therefore, it was not implausible that malic acid imparted a vinegar flavor to the product and acts as a flavor enhancer. Consequently, the court concluded that the consumers met their pleading burden.

Statute of limitations. Lastly, Frito-Lay claimed that it was clear that the court intended to invoke the continuous accrual doctrine in its prior order and that the distinction was a critical one. The court agreed that it intended to invoke the continuous accrual doctrine in its prior order, and that the continuous accrual doctrine—rather than the continuing violation doctrine—applied here. Accordingly, the CLRA and FAL claims based on purchases prior to May 11, 2014, and the breach of warranty and UCL claims based on purchases prior to May 11, 2013, were ruled to be time-barred.

The case is No.: 3:17-cv-01345-JLS-BGS.

Attorneys: Alexis M. Wood (The Law Offices of Ronald A. Marron) for Barry Allred. Andrew S. Tulumello (Gibson Dunn & Crutcher LLP) and Frederick William Kosmo, Jr. (Wilson Turner Kosmo LLP) for Frito-Lay North America, Inc. and Frito-Lay, Inc.

Companies: Frito-Lay North America, Inc.; Frito-Lay, Inc.

MainStory: TopStory FDCActNews FoodNews LabelingNews PreemptionNews

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