Last month, a federal judge denied Frito-Lay’s motion to dismiss a lawsuit involving allegations that its “Salt and Vinegar Flavored Potato Chips” contain artificial flavors. Specifically, the plaintiffs asserted that Frito Lay: (1) did not specify the type of malic acid on the ingredient panel; and (2) falsely labeled the chips as containing no artificial flavors, because the chips contain malic acid (which the plaintiffs allege is artificial). Frito-Lay argued it is under no obligation to disclose the specific type of malic acid because “malic acid” is the ingredient’s common name and that its “no artificial flavors” claim on the packaging is truthful because malic acid is a flavor enhancer rather than an artificial flavor.  The judge could not determine whether the Food, Drug, and Cosmetic Act (“FDCA”) preempts the claims and denied the motion based on factual determinations relating to the plaintiff’s assertions, noting that if malic acid is determined to be an artificial flavor, a reasonable consumer would be deceived by Frito-Lay’s packaging.

Takeaway: Depending on the outcome of this case, the use of flavor enhancers in a product may impact the ability for advertisers to make certain “no artificial flavors” claims.