The company said the plaintiffs, consumers Doug Campen and Markus Wilson, who filed the suit in 2012, have not been harmed by the label statements that include “0 grams trans fat” and “Made with all natural ingredients,”. It further argued their intention of buying the products was not based on those labels.
“[They] bought these products… because of their taste and because they were good snacks,” Frito-Lay said in the court filing.
“Nor [are they] entitled to injunctive relief, as... evidence shows that the ‘natural’ statements [they have challenged] were removed from the products more than three and a half years ago... there is no evidence that Frito-Lay intends to re-introduce those statements.”
In addition, Frito-Lay said the plaintiff’s contest to the accuracy of the “0 grams trans fat” statement failed because it is rooted in a misreading of FDA labeling regulations.
“Under FDA rules, these statements are ‘amount’ claims that do not require a reference statement regarding total fat content… But, even if the regulations were viewed as ambiguous… Frito-Lay should not be subjected to liability for not implementing a regulation in a manner for which it did not receive fair notice.”
‘Lawyer-driven’ litigation
Frito-Lay also noted the litigation is “lawyer-driven”. Campen and Wilson only filed the proposed class action fter being approached by counsel, who have filed dozens of similar cases in this court.
Speaking with BakeryandSnacks, food and beverage class action defense attorney at Amin Talati & Upadhye, Ryan Kaiser said, “as hard as the plaintiff’s attorneys might try to prepare their clients for these depositions, if the individual’s head and heart aren’t really in the litigation, they’re going to slip up at deposition or at trial.”
According to his firm’s database, these types of cases can result in a $1.5m to $3.5m payout when settled by the court, which is “incredibly expensive.”
Be more proactive
Kaiser said that label and claims review, as well as risk mitigation strategies, are two key areas to avoid these lawsuits.
“The former helps identify possible labeling violation and risky claims that may lead to a demand letter or complaint. The latter helps significantly limit the potential exposure and puts the company in a much better position to settle or defeat the suit in the event it is filed. Class certification is really the whole ballgame in these cases. If the client has a strategy and evidence in place to defeat a bid for certification, they’re going to be in a much better position,” he explained.
“Companies need to be proactive and start taking steps before receiving a CLRA (California Consumers Legal Remedies Act) complaint,” Kaiser said. “The day you get served with a complaint is not the time to review your labels and advertising.”