Frito-Lay Inc. failed to win dismissal of a would-be class action alleging its Salt and Vinegar Flavored Potato Chips are misleadingly labeled as only containing natural ingredients.
The suit by consumers Barry and Mandy Allred can move closer to trial, the U.S. District Court for the Southern District of California said March 7.
The defense argued the suit should be dismissed because the alleged harm could have been avoided by reading the product label.
The plaintiffs overcame that argument by alleging the product contained malic acid, an undisclosed artificial ingredient, the court said.
The defense also argued that California’s statute of limitations limits damages to those who sue within three years of an alleged injury, far less than the six years of harm alleged in the suit.
The “continuing violation” exception to the the limitations law applies until the harm is corrected, the court said. It would be unfair to allow the defendant to obtain “immunity” for alleged product misbranding for recent and ongoing malfeasance, the court said.
The court held off deciding whether the suit attempts to force label changes that would conflict with the requirements of the federal Food Drug, and Cosmetic Act.
Plaintiffs’ attorneys include the Elliott Law Firm. Defense attorneys include Gibson Dunn & Crutcher.
The case is Allred v. Frito-Lay N. Am., Inc. , 2018 BL 78226, S.D. Cal., No. 17-CV-1345 JLS (BGS), 3/7/18.