9th Circuit finds 'air fried' label not deceptive, affirms dismissal

A divided 9th U.S. Circuit Court of Appeals panel on Wednesday affirmed a San Francisco judge's dismissal of a class action against Campbell Soup Company alleging that its Kettle Brand "Air Fried" potato chips are deceptively labeled as air fried when they are deep fried in oil.

"The front label therefore expressly describes a two-step process that involves both kettle cooking and air frying," Senior 9th Circuit Judge Sidney R. Thomas and 9th Circuit Judge Daniel A. Bress wrote in an unsigned order affirming the decision by Senior U.S. District Judge Charles R. Breyer.

But 9th Circuit Judge Salvador Mendoza Jr. dissented.

He wrote that the majority opinion "departs from the plausibility standard that governs at the motion-to-dismiss stage and misconstrues how reasonable consumers (rather than judges parsing labels with technical precision) interact with food claims in a typical marketplace."

The dispute over Campbell's motion to dismiss centers on whether consumers would be confused by the label on the front and back of the bag. Husain v. Campbell Soup Company, 20-6041 (9th Cir., filed Oct. 3, 2024).

The plaintiff, Syed Husain, said he purchased Kettle Brand Air Fried potato chips in an effort to buy a healthier snack for his girlfriend. He sued in March 2024, alleging violations of the state's Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act.

Citing an online dictionary, Husain's lawyers -- James M. Pazos of the Pazos Law Firm and Craig R. Smith of the Smith Law Firm -- argued that the "air fried" label was false and misleading because consumers understand "air frying" to involve cooking with little or no oil.

Breyer, in granting Campbell's motion to dismiss in September 2024, ruled that the front label was "not deceptive at all."

"But while the label does state that the Product is "Air Fried," immediately below that representation -- in the same text box -- is the statement that the Product is 'Kettle Cooked Air Finished,'" the judge wrote.

"Given this additional representation, the Court does not find it plausible that reasonable consumers would be deceived into thinking that the Product is 'entirely' air fried," the judge added.

Los Angeles-based attorneys with King & Spalding LLP, who represented Campbell Soup, were not available for comment.

Smith, in an email, wrote that he was "strongly considering en banc review."

If Smith and Pazos seek rehearing, they are likely to rely on Mendoza's dissent.

He wrote that the panel's task "is only to determine whether a 'reasonable consumer' could at least plausibly conclude what the front of this packaging obviously intends to communicate: that the chips are exclusively 'Air Fried.' The complaint alleges exactly that, and the labeling readily supports it."

Mendoza added that he was concerned about the broader implications of the majority's reasoning.

"By allowing manufacturers to rely on industry jargon or vague qualifiers to gloss over a clearly suggested message, we risk enabling precisely the kind of consumer deception that California's deceptive practices statutes intend to prevent," he wrote.

Thomas and Bress, however, pointed to the labeling on the back of the bag, which includes "a pictorial depiction of potato slices being dropped into a vat of boiling liquid that a reasonable consumer would understand to be oil, especially given the visible droplets bubbling out of the pot."