No Artificial Preservatives? Not So, Says Pirate’s Booty Class Action

Pirate’s Booty snacks have misrepresenting labels that falsely state the products do not contain artificial preservatives, even though they contain citric acid, a preservative made through chemical processing, plaintiffs claim in a class action complaint filed by Milberg attorneys in New York federal court.

If you purchased Pirate’s Booty that lists citric acid as an ingredient, you may be able to automatically become a class member. Read on to learn more about the lawsuit and how to join.

The Product

Pirate Brands snacks was founded in 1987. The founder sold the brand to B&G Foods in 2013. In 2018, Hershey Company bought Pirate Brands. Pirate’s Booty is now sold under Hershey’s Amplify Snack Brands.

The citric acid contained in the Products is commercially manufactured and the result of extensive chemical processing.

The flagship Pirate’s Booty product is its white cheddar popcorn, which is positioned as a healthier alternative to snacks like buttered microwave popcorn and Cheetos. Hersheyland.com, for example, tells consumers that the baked cornmeal and ricemeal snacks are “made with real, tasty ingredients,” are nut-free, gluten-free, and certified kosher, and come with “no surprises.”

However, in 2002 consumers were surprised to learn that Pirate’s Booty had more calories and fat than was indicated on the label. This discovery prompted a recall and a lawsuit.

The Lawsuit

The latest lawsuit against Pirate’s Booty also takes issue with the product’s labeling, alleging that it contains false, misleading, and deceptive statements.

According to plaintiffs Lauren Stanzione and Victoria Tyson, Pirate’s Booty claims to have “No Artificial Colors or Preservatives”—a claim they say does not square with the presence of citric acid in the products.

“The citric acid contained in the Products is commercially manufactured and the result of extensive chemical processing,” the plaintiffs state in their Pirate’s Booty class action lawsuit complaint.

Reasonable consumers would attach importance to a representation that a product has ‘No Artificial Colors or Preservatives’ because research demonstrates that a majority of consumers place importance on ‘preservative-free’ claims.

Despite the use of citric acid in Pirate’s Booty, defendant Hershey Co. has a monetary interest in representing the product as not containing artificial preservatives due to consumer demand for “free-from” food, the plaintiffs further state.

They cite market research showing that 84% of Americans seek foods that are free from ingredients like preservatives, trans fats, and GMOs because they perceive such foods as healthier. The cited study reveals that 71% of consumers deem the “preservative-free” claim to be important to them.

As a result, the plaintiffs say, the “preservative-free” representation is material to consumers.

Not only do consumers like them place importance on the “preservative-free” claim, the plaintiffs add, but they are “willing to pay a premium for healthy, non-preservative food items” as they did when purchasing Pirate’s Booty.

Citric Acid

Some citric acid is naturally occurring and derived from citrus fruits. But more than 90% of commercially produced citric acid—including the citric acid found in Pirate’s Booty—is made from an industrial process derivative of the black mold Aspergillus niger. The process involves feeding GMO corn-derived sugars to black mold, which then ferments to form manufactured citric acid.

Aspergillus niger can cause allergic reactions and diseases in humans. Negative health effects of consuming artificial citric acid include joint pain, muscle pain, stomach pain, and shortness of breath.

Proposed Classes and Remedies

Plaintiffs Stanzione and Tyson seek compensatory and statutory damages on behalf of themselves and the following proposed classes:

• All persons in the United States who purchased Pirate’s Booty snack products during the applicable statute of limitations period.
• A subclass of class members who reside in New York State and purchased the products.

Eligible class members do not have to take any action to join. They are represented by Milberg’s Nick Suciu III, whose practice is focused on FDA regulations, advertising, and marketing law in the dietary and sports supplement industries.

Mr. Suciu has previously filed “preservative-free” lawsuits over Neutrogena shampoo and Emeril’s pasta sauce, as well as a lawsuit alleging that Hershey’s dark chocolate contains heavy metals.

As a national leader in class action lawsuits, Milberg has filed nearly 1,000 claims in the last three years. Since 1965, the firm has recovered billions for our clients and built a legacy of standing up to corporate power.