9th Circuit chips away at consumer protection again

Hussain v. Campbell Soup Co., No. 24-6041 (9^th Cir. Dec. 10, 2025)

Nonprecedential despite a dissent. The majority affirms dismissal of claims in a putative class action suit alleging that Kettle Brand “Air Fried” chips are deceptively labeled as solely air fried when they are, in fact, deep fried in oil.

Hussain failed to plausibly allege that a reasonable consumer would be deceived into believing that the chips are not deep fried in oil: The front of the packaging prominently states that the chips are not just “Air Fried,” but also “Kettle Cooked Air Finished.” “The front label therefore expressly describes a two-step process that involves both kettle cooking and air frying. The suggestion that the chips are exclusively air fried is belied by the plain language of the front of the packaging.” [Ed. note: I’m with the dissent here. Using “fried” for one process and “cooked” for the other implies that the second process is not “frying.”] 

The majority found that reasonable consumers would understand “kettle cooked” to refer to “the commonly understood method of deep frying potato chips in oil”; it wasn’t plausible to understand the term as including cooking with water or steam. “[A] front-label burst indicates that these chips have ‘30% less fat than regular Kettle Brand’ chips, and a reasonable consumer would understand that the remaining fat content cannot come from potatoes alone, without a significant amount of oil.” 

Anyway, even if the front label is ambiguous, the back lists “vegetable oils (canola, sunflower and/or safflower)” as the second ingredient and reiterates: “We batch cook them in kettles, then air fry them for a light and crispy crunch!” And there is also “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. Given this context, no reasonable consumer unsure of the meaning of the front label would be deceived into thinking that the chips are not deep fried in oil.”

Judge Mendoza dissented, arguing that the majority ignored the plausibility standard and failed to take the perspective of ordinary consumers. “At the Rule 12(b)(6) stage, our 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.”

In stand-alone font and sizing, the front panel prominently states “Air Fried,” a phrase widely used in consumer marketing to signify an exclusive and healthier frying method. … At best, “kettle cooked” functions as a vague descriptor of texture or artisanal batch cooking, not as a qualifying statement as to the frying method (i.e. that the chips are in fact also deep fried in vats of oil). Consumers purchasing bags of chips at a store are not required to understand formalized industry jargon or technical food-processing methods.

The dissent noted that Campbell Soup’s counsel at oral argument “readily conceded” that the term “kettle cooked” is an “industry” term of art. “Any person with access to the internet  can also review the countless blogs, forums, and websites that are devoted to explaining (and debating) the exact meaning of ‘kettle cooked.’” [I personally have no knowledge at all of what “kettle cooked” generally means.]

Indeed, the “30% Less Fat” statement “operates in tandem with the dominating ‘Air Fried’ label to further mislead a reasonable consumer”: it plausibly gives the impression that the chips contain less fat because they are exclusively “Air Fried.”

The majority contends that a reasonable consumer simply must know and conclude that the presence of any fat or oil necessarily means that the chips are also deep fried. But, again, the majority is simply incorrect. Air frying does not suggest the use of no oil or fat, but a lesser use of oil that is placed on the chips so that they fry via circulating hot air.

After all, the complaint alleged deception about whether the chips were deep fried, not whether the chips have any oil or fat. “When a manufacturer chooses to intentionally place a prominent, dominating health-coded claim like ‘Air Fried’ alongside a smaller, quantified fat-reduction claim, a consumer is plausibly entitled to take those messages at face value without searching for other obscure and technical qualifiers that hold vague and unqualifying meanings.”

The back label, to the dissent, didn’t help—it repeated the cook/fry distinction and did not disclose a deep-frying process. “[K]ettles can be used for steaming, boiling, par-cooking, or a variety of non-frying processes – all of which are indeed methods of making potato chips. The packaging suggests to the consumer that the process of frying is exclusively via air while not equally disclosing in any clear way that the chips are also deep fried.” The “miniscule” back-of-package graphic was also ambiguous.

The packaging “appears deliberately engineered to foreground a health-coded exclusive frying message while burying the true deep-frying process behind jargon and technical phrasing that only a judge or label-lawyer would ever bother to parse.”