Herr’s Jalapeño Poppers Label Fails to Disclose Artificial Flavoring, Class Action Says

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A proposed class action claims the label of Herr’s jalapeño poppers-flavored cheese curls is deceptive and misleading since it fails to note that the snack’s taste comes in part from artificial flavoring.

The 15-page suit states that federal and identical food labeling regulations require defendant Herr Foods Incorporated to disclose the source of the cheese curls’ characterizing jalapeño and cheese taste on the product’s front label. Since the snack is shown on the product label with pictures of jalapeño and cheese, consumers expect the taste to come from these identified ingredients and/or natural flavors derived from these ingredients, the case says.

The filing relays that although the ingredients list reveals the cheese curls contain cheese and jalapeño ingredients, including “cheese blend” and “green bell pepper powder,” the “seasoning” ingredient contains artificial flavors. These artificial flavors, the case says, “simulate, resemble and/or reinforce” the characterizing jalapeño and cheese flavors, meaning the snack’s front label should state something like “artificial jalapeño and cheese” or “artificially flavored jalapeño and cheese.”

The Herr’s label is additionally misleading, the lawsuit goes on, in that it includes images of two curls showing “intact halves of jalapeño inside the outer shell from which cheese is dripping.” In light of this, consumers “will reasonably expect the Product to contain jalapeños filled with cheese inside an outer fried snack shell,” the complaint argues.

According to the lawsuit, the Herr’s snack does not contain intact jalapeños or any other peppers filled with cheese inside a fried shell, as the pepper ingredients are only part of the “seasoning” stated in the ingredients list. 

“Since these ingredients are listed as part of the ‘Seasoning,’ this means they are not present in their whole or intact form inside the fried shells as seasoning is used to denote a food’s flavoring and taste,” the suit reads. 

Overall, Herr’s was able to sell more of the product, and at higher prices, than it would have “in the absence of this misconduct,” the case alleges. The plaintiff claims to have read and relied on the product’s label and the representations thereon when buying the snack, believing that the jalapeño poppers’ taste came from the displayed ingredients and/or natural flavorings from the ingredients. 

“Plaintiff did not expect the jalapeño and/or cheese taste was from artificial jalapeño and/or cheese flavoring because, in her experience, this is the type of information typically disclosed to consumers on the label,” the filing reads. 

The lawsuit looks to cover consumers in Illinois, Alabama, New Jersey, Montana, Alaska, Texas, Arizona, New Mexico, Mississippi, Utah, Nebraska, South Carolina, Tennessee and Virginia who bought Herr’s jalapeño poppers-flavored cheese curls within the applicable statute of limitations period. 

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