Chip Shot

Last week, in “Pulp Fiction,” I wrote about the response from Minute Maid Orange Juice, a division of PepsiCo, to a class-action lawsuit alleging that it was deceiving consumers when it advertised its pasteurized not-from-concentrate orange juice as “100% Pure and Natural.” This week, another PepsiCo division, Frito-Lay, is in the deceptive advertising spotlight.

Just in time for the Super Bowl, a resident of New York filed a class action lawsuit Monday alleging that Frito-Lay was deceiving consumers by advertising that its Tostitos and SunChips products are made from “all-natural ingredients.” The plaintiff alleges that the snacks are not “natural” because they contain corn and oils made from genetically modified plants. The suit alleges that “genetically modified organisms are created artificially in a laboratory by swapping genetic material across species to exhibit traits not naturally theirs. Since a reasonable consumer assumes that seeds created in such a way are not ‘all natural,’ advertising Tostitos and SunChips as natural is deceptive and likely to mislead a reasonable consumer.”

The New York lawsuit is similar to one filed in California last month, which also alleges that genetically modified organisms are not “all natural.” As one food blogger noted, “I don’t care what a food label says, if consumers think chips are somehow ‘all-natural,’ then we have a bigger problem.”

I do not think it is a coincidence that this lawsuit was filed at the beginning of a week when many consumers are planning their Super Bowl parties. When asked for a comment on the lawsuit, a Frito-Lay spokesperson said the company was confident the labeling on its packaging “complies with all regulatory requirements.”

Considering that the New York lawsuit is the second one alleging deceptive advertising, I would have expected a more robust statement. Claiming that the packaging “complies with all regulatory requirements,” does not answer the question these lawsuits are likely to raise in the consumer’s mind, that is: “What’s in the chips?” I do not think it would compromise Frito-Lay’s legal position to emphasize, for example, that all the ingredients are clearly stated on the label, and that the chips are made from three ingredients; corn, oil, and salt.