9th Circuit chips away at consumer protection again

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

Nonprecedential despite a dissent. The majority affirmsdismissal 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 reasonableconsumer would be deceived into believing that the chips are not deep fried inoil: The front of the packaging prominently states that the chips are not just“Air Fried,” but also “Kettle Cooked Air Finished.” “The front label thereforeexpressly describes a two-step process that involves both kettle cooking andair frying. The suggestion that the chips are exclusively air fried is beliedby the plain language of the front of the packaging.” [Ed. note: I’m with thedissent here. Using “fried” for one process and “cooked” for the other impliesthat the second process is not “frying.”] 

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

Anyway, even if the front label isambiguous, the back lists “vegetable oils (canola, sunflower and/or safflower)”as the second ingredient and reiterates: “We batch cook them in kettles, thenair fry them for a light and crispy crunch!” And there is also “a pictorialdepiction of potato slices being dropped into a vat of boiling liquid that areasonable consumer would understand to be oil, especially given the visibledroplets bubbling out of the pot. Given this context, no reasonable consumerunsure of the meaning of the front label would be deceived into thinking thatthe chips are not deep fried in oil.”

Judge Mendoza dissented, arguing that the majority ignoredthe plausibility standard and failed to take the perspective of ordinaryconsumers. “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 thispackaging obviously intends to communicate: that the chips are exclusively ‘AirFried.’ The complaint alleges exactly that, and the labeling readily supportsit.”

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

The dissent noted that Campbell Soup’s counsel at oralargument “readily conceded” that the term “kettle cooked” is an “industry” termof 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 tandemwith the dominating ‘Air Fried’ label to further mislead a reasonable consumer”:it plausibly gives the impression that the chips contain less fat because theyare exclusively “Air Fried.”

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

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

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

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