‘Reduced Fat’ Potato Chip Claim Will Proceed

     SAN FRANCISCO (CN) – The makers of Kettle brand chips persuaded a federal judge to dismiss claims that its “reduced fat sea salt chips” were falsely advertised, though the judge gave the plaintiff leave to amend his complaint.
     Richard Hall sued Diamond Foods, claiming that its statements about its sea salt chips with “40% reduced fat” were false and deceptive.
     Among other things, Hall claimed the reduced fat chips are “only reduced in fat by 33 percent” and that the phrase “40% less fat than regular potato chips” used on bags is deceptive because “regular potato chips are ‘an inappropriate reference food.'”
     Diamond claimed that Hall did not allege which of the allegedly deceptive statements he read before buying the chips. U.S. District Judge Maxine Chesney agreed with Diamond.
     Chesney dismissed the claims related to the reduced fat sea salt chips, but allowed Hall leave to amend the complaint with the statements he relied on before buying them.
     The judge refused, however, to dismiss the parts of the lawsuit related to Diamond’s Backyard Barbecue chips, which were advertised as “all natural.”
     “Plaintiff, relying on dictionary definitions of the words ‘all’ and ‘natural,’ alleges that the ‘all natural’ representations ‘indicate [ ] to the average reasonable person that ‘the whole extent or quantity of’ the ingredients contained in the food product [ ] are ‘produced or existing in nature; not artificial or manufactured,'” Chesney wrote. (Empty brackets in ruling.)
     “To the extent defendant argues that a reasonable consumer would not understand ‘all natural’ to have the meaning alleged by plaintiff, the Court finds such arguments premature.”
     Because Hall did not allege that he read Diamond’s promotional materials or looked at its website before buying the chips, Chesney dismissed the claims related to the website, granting leave to amend.
     A case management conference is scheduled in Chesney’s courtroom on Oct. 31.

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