Class action against Campbell Snacks' Kettle Brand Air Fried potato chips debates the definition of air frying

According to the suit filed in the California federal court by James Pazos of Pazos Law Firm and Craig R Smith of Smith Law Firm – attorneys for plaintiff Syed Hussain and ‘all other similarly situated individuals’ – the Camden, New Jersey-headquartered snack maker has misled consumers into believing the potato chips are cooked exclusively in an air fryer.

While the front of pack distinctly makes the claim AIR FRIED in large font, this is qualified below in slightly smaller font as ‘Kettle Cooked Air Finished’. Vegetable oils (canola, sunflower and/or safflower) are also listed on the ingredients list of its Himalayan Salt, Jalapeno and Salt & Vinegar Air Fried chips, ​​while the brand’s website states the chips ‘are batch cooked in kettles then air fried for a light and crispy crunch’.

However, the 17-page suit asserts that by labeling the chips as air fried, the company suggests ‘the products are cooked by means of an air fryer’.

It continues, ‘Dictionary.com defines air frying as a method of food preparation in which the ingredients are enclosed in a type of small convection oven and cooked – with little or no oil – by the circulation of hot air, which for certain foods results in a crispy surface, as if they had been deep-fried’. Similarly, Merriam-Webster defines the equipment – which has taken on the culinary world by storm – as ‘an airtight, usually small electrical appliance for quick cooking of foods by means of convection currents circulated rapidly by a fan’.

The label, according to the lawsuit, differentiates the product from traditional potato chips by avoiding ‘the unhealthy effects of using the oil frying cooking method’. The suit even asserts ‘medical studies have suggested that foods fried in oil may increase the risk of some cancers’.

In explanation, the suit states Burlingame resident Hussain, in November 2023, ‘was looking for a healthy snack for his girlfriend, knowing that she was very health conscious’. He was taken in by the product’s label and believed the chips to be ‘cooked completely by convection currents in air and … not fried in a vat of oil’.

Had he ‘known the truth … he would not have purchased the product’.

The filing argues the ‘Kettle Cooked Air Finished’ phrase fails to remedy the ‘deceptive nature’ of the far more prominent AIR FRIED claim.

‘In one ad, the defendant depicts a giant air fryer and loudly proclaims “WE’VE GOT AN AIR FRYER!” to mislead consumers into believing that large air fryers are used to cook the product,’ it adds.

And what is kettle cooked?

Furthermore, the suit claims the phrase Kettle Cooked is false and that at least one Campbell representative has admitted the chips are not cooked in kettles.

Even if they were, this ‘implies the use of steam, rather than oil, since kettles are commonly associated with boiling water … [according to] the Cambridge Academic Content Dictionary’.

‘Finally, the phrase is, at best, ambiguous since Kettle is the brand name, leaving reasonable consumers to interpret the phrase is as a marketing jingle,’ the filing states.

It summarizes the brand is profiting by charging a premium ‘for the misrepresentations’ and ‘by selling the products to tens of thousands of unsuspecting California consumers’.

It adds if the product were reformulated to be completely cooked in an air fryer, Hussain would purchase the chips again in the future.

In the meantime, he alleges Campbell is in violation of California’s False Advertising Law, Unfair Competition Law and Consumers Legal Remedies Act. He is demanding a jury trial and requests declaratory and injunctive relief and an award of compensatory and punitive damages for himself and all class members.

‘Upon information and belief, the aggregate amount in controversy is more than $5,000,000.00, exclusive of interests and costs,’ states the filing.

Hussain wants to represent a nationwide class of consumers who purchased any Kettle Brand Air Fried potato chips since February 15, 2023.

Lawsuit:

The Kettle potato chips class action lawsuit is Hussain v. Campbell Soup Co., Case No. 3:24-cv-01776, in the U.S. District Court for the Northern District of California.