An Illinois consumer has brought a proposed class action against Herr Foods Inc., alleging the packaging of its jalapeño-poppers-flavored cheese curls misleads consumers as to the source of the product’s flavoring. Forlenza v. Herr Foods Inc., No. 22-5278 (N.D. Ill., filed September 27, 2022)

The plaintiff asserted in the complaint that consumers have a hierarchy when it comes to the source of a food’s taste: the most preferred option is when the taste comes from a characterizing food ingredient, followed by natural flavors and artificial flavors. She also cited surveys finding that a majority of the public seeks to avoid artificial flavoring.

The plaintiff said she read and relied on labeling including “Oven Baked With Real Cheese,” “Flavored Cheese Curls,” and a picture of a ripe jalapeño and cheese dripping out of one of the snacks, among other representations, and believed the product got its jalapeño and cheese taste from these ingredients or natural flavorings from these ingredients. The product does not contain intact peppers, however, because the pepper ingredients are only listed as part of the product’s seasoning, described as “Green Bell Pepper Powder [and] Chipotle Pepper.”

“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 front label,” the complaint said. The plaintiff’s claims include alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and other state consumer-fraud acts, as well as unjust enrichment and fraud. She is seeking class certification, injunctive relief, damages and attorney’s fees.

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