Consumers Unaware that ‘Sea Salt & Vinegar’ Cape Cod Kettle Cooked Chips Are Artificially Flavored, Lawsuit Claims

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A proposed class action alleges the labeling of the “Sea Salt & Vinegar” variety of Cape Cod Kettle Cooked Potato Chips is misleading in that it does not disclose that the product’s characterizing flavor is artificial.

The 12-page lawsuit alleges defendant Cape Cod Potato Chip Company, LLC is required by law to disclose that its sea salt and vinegar chips contain amounts of actual vinegar and apple cider vinegar that are “too small to flavor the Product,” and derive their taste instead from malic acid, an artificial flavoring agent.

“Because the Product contains artificial flavor that ‘stimulates, resembles or reinforces the characterizing flavor,’ federal and state law require the front label to state, ‘Artificially Flavored,’” the suit, filed in New York’s Southern District Court, says. 

According to the complaint, analytical testing and/or analysis of the Cape Cod sea salt and vinegar chips revealed the product contains the added flavors of synthetic dl-malic acid, which lends the chips their tart, “persistently sour” vinegar taste, and citric acid. Although a version of malic acid, called l-malic acid, is found in fruits and vegetables, the kind used by the defendant in its potato chips is the artificial variety, the case says. 

“Although the malic acid in the Product is the artificial version—dl-malic acid—Defendant pretends otherwise, conflating the natural and artificial flavorings, misbranding the Product, and deceiving consumers,” the lawsuit alleges.

The case goes on to charge that the ingredients list found on bags of sea salt and vinegar Cape Cod potato chips violates federal and state law in that it misleadingly identifies the dl-malic acid added to the product as only the generic “malic acid,” rather than stating the specific, non-generic name of the ingredient. As far as consumers are concerned, one who scrutinized the product’s ingredients list would still be unable to discern that it contained artificial flavors, the lawsuit avers. 

In all, Cape Cod Potato Chip Company, the complaint alleges, has misrepresented its sea salt and vinegar chips through “affirmative statements, half-truths, and omissions” and has been able to sell more of the product at a higher price than it would have in the absence of the alleged misleading labeling. 

The case looks to represent consumers in New York, Connecticut, Delaware, Rhode Island and Maryland who bought the defendant’s sea salt and vinegar chips during the applicable statute of limitations period. 

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