On September 11, 2020, Sheehan & Associates, P.C., filed a class-action lawsuit on behalf of a proposed class of New York consumers against Frito-Lay, Inc., alleging that the company had failed to disclose that their “cheddar & sour cream flavored” Ruffles (potato chips) were artificially flavored.

The complaint alleges that diacetyl (2,3 di-butanone) produced in the fermentation of sour cream is primarily responsible for sour cream’s desirable flavor and aroma. The complaint further alleges that the production of high levels of diacetyl requires high levels of citrate, that such levels are found only in cream derived from cows on a pasture diet, and that producers frequently supplement inadequate levels of diacetyl in sour cream derived from feedlot cattle with artificial diacetyl flavor. Further, the complaint alleges that Frito has done exactly that to produce the sour cream flavor of the Ruffles, and, rather than disclose that their product was “Artificially Flavored” as required by 21 CFR 101.22, merely disclosed “Artificial Flavors” on the ingredient list.

While this is the first flavor case that we have seen that deals with the alleged addition of artificial diacetyl, flavoring litigation has become a common subject of litigation, and we will continue to monitor and report on developments in this area.