Salt and Vinegar Flavored Potato Chips and GBL §§ 349 and 350

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Posted on: Dec 8 2025

In Brearly v. Weis Mkts., Inc., 2025 N.Y. Slip Op. 34485(U) (Sup. Ct., Broome County Oct. 31, 2025), the motion court was asked to consider the viability of claims for violations of General Business Law (“GBL”) §§ 349 and 350, which prohibit false advertising and deceptive acts or practices in the conduct of any business, trade, or commerce.[1] As discussed below, the motion court held that plaintiff failed to satisfy the elements of the claims asserted.

In particular, plaintiff alleged that “Salt & Vinegar Flavored Potato Chips” packaging was misleading under GBL §§ 349 and 350 because it implied natural ingredients, though the chips contained artificial flavorings like malic acid. The motion court held the claims failed. While the packaging was consumer-oriented, an element of a GBL claim, it was not materially misleading: the label stated “flavored,” signaling artificial ingredients, and omitted terms like “all natural.” Additionally, the motion court rejected plaintiff’s “price premium” theory of damages because the chips were a lower-cost store brand, not marketed at a premium. Without material deception or injury, the motion court concluded that the complaint did not meet statutory requirements necessary to withstand the motion to dismiss.

Summary of the Action

Plaintiff alleged that she purchased defendant’s “Salt & Vinegar Flavored Potato Chips” from January 2022 through January 2025. She asserted that many consumers, including herself, seek foods made with natural flavors and ingredients and try to avoid products containing artificial flavoring, which they view as potentially less healthy. Plaintiff claimed that the product’s packaging misled consumers because the chips did not contain real vinegar; instead, the vinegar taste was derived from artificial ingredients. Plaintiff emphasized that the words “salt & vinegar” appeared in a large, white font at the top of the front label, while the phrase “flavored potato chips” appeared below it in a smaller, darker font, allegedly suggesting the presence of natural ingredients. Plaintiff also pointed to the imagery on the packaging: a glass bowl that appeared to hold salt and a wooden spoon next to a cruet filled with vinegar. Despite these representations, the ingredient panel on the back listed sodium diacetate and malic acid—both artificial flavorings—rather than vinegar.

Plaintiff further asserted that she paid more for the product than she otherwise would have had she known it contained artificial flavoring, even though the chips were sold as a more economical store-brand alternative to national brands. She alleged that these labeling and pricing practices amounted to deceptive conduct in violation of the GBL.

The GBL

To state a claim under GBL §§ 349 and 350, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct, that is (2) materially misleading, and that (3) the plaintiff suffered injury as a result of the allegedly deceptive act or practice.[2] A claim under these statutes does not lie when the plaintiff alleges only “a private contract dispute over policy coverage and the processing of a claim which is unique to the[] parties, not conduct which affects the consuming public at large.”[3] Thus, a plaintiff claiming the benefit of either Section 349 or Section 350 “must charge conduct of the defendant that is consumer-oriented” or, stated differently, “demonstrate that the acts or practices have a broader impact on consumers at large.”[4]

Notably, the deceptive practice does not have to rise to “the level of common-law fraud to be actionable under section 349.”[5] In fact, “[a]lthough General Business Law § 349 claims have been aptly characterized as similar to fraud claims, they are critically different.”[6] For example, while reliance is an element of a fraud claim, it is not an element of a GBL § 349 claim.[7]

Nevertheless, a plaintiff must allege the existence of a materially misleading act or advertisement to state a cause of action under GBL §§ 349 and 350.[8] The test for both a deceptive act or deceptive advertisement is whether the act or advertisement is “likely to mislead a reasonable consumer acting reasonably under the circumstances.”[9] Whether a particular act or advertisement is materially misleading may be made by a reviewing court as a matter of law.[10]

The Motion Court’s Decision

As to the first element, the motion court found there was “no question … the packaging at issue is consumer oriented.”[11] Though plaintiff satisfied the first element of the claims, the motion court held that plaintiff failed to satisfy the second and third elements of the claims.

With regard to the second element (i.e., consumer-oriented conduct that is materially misleading), the motion court held that plaintiff failed to state a claim.[12] The motion court found that the “label at issue expressly state[d] the chips [were] ‘flavored’, thereby indicating the presence or possibility of artificial ingredients.”[13]

Plaintiff alleged that the packaging was deceptive because a reasonable consumer would expect the chips to contain only “natural” ingredients based on the label “Salt & Vinegar Flavored Potato Chips” juxtaposed with the image of a cruet containing vinegar adjacent to a bowl containing salt. Defendant argued, among other things, that no reasonable consumer would be misled into believing that its salt and vinegar potato chips did not contain artificial ingredients. Defendant further argued that the packaging at issue did not contain overt statements, such as “all natural,” and that the presence of a cruet filled with amber liquid, ostensibly vinegar, did not create the false impression about the ingredients of the chips. The representations about flavoring, as opposed to ingredients, said defendant, were standard marketing techniques that had been widely held to be permissible in other litigations.

The motion court also held that “[p]laintiff’s position [was] further undercut by the omission of any terms that den[ied] the presence of artificial ingredients to a reasonable consumer, such as ‘all natural’”.[14] “Although the front label refer[red] to a flavor (i.e., vinegar),” said the motion court, “it makes no claims about ingredients or the source of the vinegar flavoring, nor [was] it reasonable to presume the product contain[ed] a specific ingredient”.[15] “Case law repeatedly dismisses claims alleging deception by flavoring coming from a particular ingredient,” noted the motion court.[16] Therefore, the motion court found that the “complaint conflate[d] the packaging’s representations about the product’s flavoring with its ingredients and, therefore, fail[ed] to state a viable cause of action because the packaging [was] unlikely to mislead a reasonable consumer”.[17]

The motion court further held that plaintiff failed to satisfy the third element of the claim, “namely … that plaintiff suffered an injury from the supposedly false or misleading packaging”.[18] In the complaint, plaintiff advanced a “price premium theory”, under which “[a] company market[s] a product as having a unique quality, that the marketing allowed the company to charge a price premium for the product, and that the plaintiff paid the premium and later learned that the product did not, in fact, have the marketed quality”.[19] The motion court found that the allegations in the complaint actually undermined plaintiff’s position: “A review of the complaint, however, reveals plaintiff’s acknowledgment that defendant’s potato chips were not marketed as a national brand at a premium price, but rather as a ‘private label product’ sold at a lower cost compared to national brands.”[20] The motion court concluded that “[w]ithout the allegation that plaintiff paid a premium for defendant’s product because of its labeling, but rather an admission that she did not, plaintiff … failed to satisfy the third prong of a claim for deceptive practice and/or false advertising by failing to allege damages arising from the allegedly deceptive labeling of defendant’s product”.[21]

Takeaway

For GBL §§ 349 and 350 claims, plaintiffs must demonstrate that the subject marketing is materially misleading and caused actual harm. As explained by the motion court in Brearly, flavor descriptions and imagery alone, without explicit ingredient claims, generally do not suffice. Additionally, price-premium arguments require evidence that the product was sold at a higher price due to the alleged misrepresentation. In Brearly, plaintiff failed to allege harm due to a price premium, especially since plaintiff acknowledged that defendant’s potato chips were not marketed as a national brand at a premium price.

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] This Blog has written numerous articles examining GBL §§ 349 and 350, including: New York Court of Appeals Reaffirms that Claims Under GBL 349 and 350 Must Have a Broader Impact On Consumers at Large; GBL 349 and 350, Contractual Privity and The Warranty of Merchantability; and Licorice Sticks and New York’s General Business Law. In addition to the foregoing articles, readers can find other articles examining GBL § 349 by clicking on the BLOG tile on our website and searching for any GBL topics that may be of interest to you.

[2] Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 n.1 (2002). GBL § 349(a) provides that “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful[,]” while GBL § 350 states that “[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful.”

[3] New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 321 (1995) (internal quotation marks omitted).

[4] Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25 (1995).

[5] Boule v. Hutton, 328 F.3d 84, 94 (2d Cir. 2003) (citing Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 343 (1999)).

[6] Gaidon, 94 N.Y.2d at 343.

[7] Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000); Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 55-56 (1999).

[8] See Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 176 (2021); Andre Strishak & Assocs., P.C. v. Hewlett Packard Co., 300 A.D.2d 608, 609 (2d Dept. 2002).

[9] Oswego, 85 N.Y.2d at 26. See also Andre Strishak, 300 A.D.2d at 609; Himmelstein, 37 N.Y.3d at 178.

[10] Id.

[11] Slip Op. at *4 (citation omitted).

[12] Id. at *5.

[13] Id. (citing Angeles v. Nestlé USA, Inc., 632 F. Supp. 3d 309, 315 (S.D.N.Y. 2022)).

[14] Id. at *6 (citing Marotto v. Kellogg Co., 2018 WL 10667923, at *8 (S.D.N.Y. 2018)).

[15] Id. (citing Wynn v. Topco Assocs., LLC, 2021 WL 168541, at *4 (S.D.N.Y. 2021)).

[16] Id. (citing Oldrey v. Nestlé Waters North America, Inc., 2022 WL 2971991 (S.D.N.Y. 2022); see also Myers v. Wakerfern Food Corp., 2022 WL 603000 (S.D.N.Y. 2022) (“flavor designation does not convey an explicit ingredient claim”)).

[17] Id. (citing Angeles, 632 F. Supp. 3d at 315-316).

[18] Id.

[19] Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d 562, 577 (S.D.N.Y. 2021) (internal citations omitted); Hawkins v. Coca-Cola Co., 654 F. Supp. 3d 290, 301 (S.D.N.Y. 2023).

[20] Slip Op. at *7.

[21] Id.

Tagged with: Commercial Litigation, Consumer Oriented, GBL 349, GBL 350