In this November 1, 1995 complaint, Frito-Lay Inc. claims that Procter & Gamble Co. has falsely advertised that its Pringle's potato chips "are healthier or more nutritionally beneficial than the Frito-Lay products."

 
IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
SHERMAN DIVISION 
 
 
FRITO-LAY, INC., 
 
Plaintiff, 
 
v. 
 
THE PROCTER & GAMBLE COMPANY, 
 
Defendant. 
 
 
Civil Action No. 495CV296 
 
JURY 
 
VERIFIED COMPLAINT 
 
PARTIES AND JURISDICTION 
 
1.   Plaintiff, Frito-Lay, Inc. ("Frito-Lay"), is a Delaware 
corporation with its principal place of business in Plano, 
Texas.  
 
2.   Defendant, The Procter & Gamble Company ("Procter 
& Gamble"), is an Ohio corporation with its principal place 
of business in Cincinnati, Ohio, doing business in the State 
of Texas.  
 
3.   This Court has jurisdiction arising from the fact that (1) 
this is an action arising under the Trademark Act of 1946, 
as amended, 15 U.S.C. Sections 1051-1121 (the Lanham 
Act), jurisdiction being conferred by 15 U.S.C. Section 
1221 and 28 U.S.C. Section 1338(a) and (b); and (2) this is 
a civil action in which plaintiff and defendant are citizens 
of different states, wherein the value of the matter in 
controversy exceeds the sum of fifty thousand dollars 
($50,000), exclusive of interest and costs, jurisdiction being 
expressly conferred by 28 U.S.C. Section 1332. Venue is 
proper in this Court under 28 U.S.C. Section 1391(c).  
 
FACTS 
 
4.   Frito-Lay is one of the world's leading manufacturers 
and marketers of snack food products.  
 
5.   Procter & Gamble is a manufacturer and marketer of 
various consumer products, including its Pringles potato 
crisp products.  
 
6.   Procter & Gamble has engaged in a series of 
commercial advertisements that expressly and/or implicitly 
compare its Pringles potato crisp products to Frito-Lay's 
potato crisp products and potato chips.  The advertisements 
falsely, deceptively, and misleadingly convey the message 
to consumers that the Procter & Gamble products are 
healthier or more nutritionally beneficial than the Frito-Lay 
products.  
 
A.  PROCTER & GAMBLE'S COMMERCIAL 
COMPARING  
PRINGLES RIGHT TO BAKED LAY'S POTATO 
CRISPS  
 
7. None of Procter & Gamble's Pringles products qualify as 
"low fat".  Recently, Frito-Lay developed and introduced a 
revolutionary new baked potato crisp product ("Baked 
Lay's") with 85% less fat than regular potato chips (1.5 
grams per one ounce serving vs. 10 grams per one ounce 
serving) which it sells in a distinctive yellow and green 
package.  Frito-Lay's new baked potato crisps meet the 
definition of "low fat" as set forth in the Nutrition Labeling 
and Education Act of 1990 ("NLEA"), which definition has 
been adopted by the Federal Trade Commission ("FTC") in 
its Enforcement Policy Statement on Food Advertising of 
May, 1994.  (A copy of Frito-Lay's Baked Lay's potato 
crisp packaging is shown in Exhibit A.  A copy of the FTC 
Enforcement Policy Statement on Food Advertising is 
attached Exhibit B).  
 
8.   The FTC, charged with the responsibility of ferreting 
out false and deceptive advertising claims by companies 
seeking to attract consumer purchases through false or 
deceptive claims, has recognized that nutritional 
information is a material basis upon which consumers make 
purchasing decisions and has formally committed to 
following the Food and Drug Administration's ("FDA's") 
guidance in evaluating nutrition- related claims made in 
advertising:  
 
"The Commission recognizes the importance of consistent 
treatment of nutrient content and health claims in food 
advertising and labeling and seeks to harmonize its 
advertising enforcement program with FDA's food labeling 
regulations to the fullest extent possible under the statutory 
authority of the FTC Act."  59 Fed. Reg. 28388.  
 
9.   On or about October 16, 1995, Frito-Lay learned that 
Procter & Gamble had begun airing a television 
commercial which compares Procter & Gamble's Pringles 
Right product with Frito-Lay's new low fat baked potato 
crisps and misrepresents the nature and qualities of both 
Procter & Gamble's product and of Frito-Lay's new product 
by:  
 
(a)  showing a simulation of a Frito-Lay's Baked Lay's 
package together with a sign that falsely proclaims "95 MG 
MORE SODIUM" when in fact, Frito-Lay's new baked 
potato crisps have only an immaterial 15 milligrams more 
sodium per serving than Procter and Gamble's product 
since June 1995;  
 
(b)  suggesting that Frito-Lay's new baked potato crisps are 
materially higher in sodium than Procter & Gamble's 
product, when in fact the difference in sodium levels is not 
nutritionally significant;  
 
(c)  showing Pringles Right as having "1/3 less fat" in a 
manner that suggests a comparison to Frito-Lay's new 
baked potato crisps, when in fact Pringles Right has over 
four times as much fat per serving than Frito-Lay's new 
baked potato crisps (7 vs. 1.5 grams per serving);  
 
(d)  showing Pringles Right as having "1/3 less fat" but 
altering the trade dress of Frito-Lay's new baked potato 
crisps to obscure the fact that the Frito-Lay product has 
qualified as a "low fat" product under NLEA requirements 
(Pringles Right has not);  
 
(e)  presenting a misleading, deceptive, and distorted health 
and nutrition comparison between the two products, by 
comparing relative sodium levels -- where the differences 
are insignificant -- but omitting information on relative fat 
levels -- where the differences are significant; and  
 
(f)  stating "so grab a stack of these, not the ones that are a' 
broken", and showing excessive crumbled and powdery bits 
of potato crisps poured from a simulation of Frito-Lay's 
package.  
 
10.  Depicted below are two scenes from Procter & 
Gamble's comparative commercial which falsely represent 
that Frito-Lays's new baked product has:  (l) 95 milligrams 
more sodium than Procter & Gamble's Pringles Right 
potato crisps, and (2) excessive breakage:  
 
11.  Sodium content of a food is a material basis upon 
which consumers make purchasing decisions.  The FDA 
mandates that sodium content be disclosed and has 
affirmed the importance of accurate sodium information 
and the importance of this information to the public health:   
 
"The Surgeon General's report asserts the need for 
moderation in sodium consumption, not only because there 
is a benefit to persons whose blood pressures do rise with 
sodium intake, but also because there is no biological 
marker for individual sodium sensitivity." 58 Fed. Reg. 
2094.  
 
12.  Procter & Gamble's comparative commercial expressly 
misrepresents the sodium content of Frito-Lay's new baked 
potato crisp product, is in derogation of the standards set by 
the NLEA and the FTC Enforcement Policy Statement on 
Food Advertising, and is likely to deceive members of the 
public into believing that Procter & Gamble's Pringles 
Right product is more  nutritionally beneficial or healthier 
than it is.  
 
13.  Procter & Gamble's comparative commercial is likely 
to deceive members of the public into believing that Procter 
& Gamble's Pringles Right product is more nutritionally 
beneficial than Frito-Lay's new low fat baked potato crisps 
in that it suggests that Pringles Right has 95 milligrams less 
sodium and 1/3 less fat than Frito-Lay's new baked potato 
crisps, when neither fact is true.  
 
14.  Procter and Gamble's comparative commercial is 
deceptive and misleading even if it accurately portrays, 
which it does not, the relative sodium levels of the products 
because a 95 milligram difference in sodium content is 
insignificant in any dietary sense.  
 
15.  Procter & Gamble's comparative commercial 
contravenes the FTC Enforcement Policy Statement on 
Food Advertising which specifically requires that:   
 
"When the context of an ad a8 a whole conveys to 
consumers the net impression that the food makes only 
positive contributions to a diet, or does not contain any 
nutrients at levels that raise the risk of diet-related disease, 
the failure to disclose the presence of risk-increasing 
nutrients is likely to be deceptive."  
 
The decision to address one material nutrient difference, the 
amount of sodium, while ignoring a major nutrient 
difference, the amount of fat, is a manipulation of 
information to consumers that creates a false impression as 
to the absolute and relative health and nutritional benefits 
of Procter & Gamble's Pringles Right product and of Frito-
Lay's new low fat baked potato crisps.  As a result, Procter 
& Gamble's comparative commercial is likely to deceive 
members of the public into believing that Procter & 
Gamble's Pringles Right product is more nutritionally 
beneficial than it is or than Frito-Lay's new low fat baked 
potato crisps, or that Procter & Gamble's Pringles Right 
product is healthier than it is or than Frito-Lay's new low 
fat baked potato crisps.  
 
16.  Comparative claims must be based on real differences 
between products, using the rules that the FDA and FTC 
have fashioned.  Procter & Gamble's fast-paced ads which 
obscure and misrepresent material nutritional information 
may boost product sales but only at the expense of 
consumers receiving reliable information from which they 
can make informed purchasing decisions.  The Pringles 
Right ads are cleverly crafted in a manner that leaves 
consumers with the incorrect impression that the Procter & 
Gamble product is healthier overall, and specifically with 
regard to fat, as compared to Frito-Lay's new low fat baked 
potato crisps.  
 
17.  The visual and audio elements of the Procter & 
Gamble ad create an overwhelming net impression for the 
viewer that the Pringles Right product is superior to Frito-
Lay's product in all respects highlighted in the ad. In 
cleverly conveying this message the nuances that might 
render the ad properly qualified are lost upon the consumer. 
The continual disparagement of the Frito-Lay product 
featured in the ad leaves the viewer with the idea that the 
"1/3 LESS FAT" claim, like all the other bases of 
comparison, are between the competitive brands, when, in 
fact, they are not.  
 
18.  The Procter & Gamble ad reflects Procter & Gamble's 
intention to play it both ways with the consumer. The ad 
purports to be upfront about the sodium information (which 
in fact is false) and yet omits the material fact that Frito-
Lay's new baked product is in fact far lower in fat than the 
Pringles Right product.  The FDA mandates that the 
quantitative amounts of a nutrient subject to a comparative 
claim be included.  See 21 CFR 101.113 (I).  The FTC 
Policy Statement similarly points to the importance of this 
information.  See 59 Fed. Reg. 28390. Moreover, the FTC 
places great emphasis on the need to disclose information 
about other nutrients in the product where the absence of 
such information would render the ad deceptive:   
 
".... disclosure of material information that is necessary to 
prevent deception may be required under Section 5 of the 
FTC Act.  For example, it is misleading to fail to disclose 
qualifying information necessary to prevent an affirmative 
statement from creating a misleading impression."  
 
"In the context of advertising that makes affirmative 
nutrient content claims, the Commission's analysis of 
deception by omission will be based on a consideration of 
whether a nutrient content claim gives rise to a misleading 
impression about the absent disclosure of other nutrition 
information." 59 Fed. Reg. 28392.  
 
Affirmative disclosure of fat is critical to avoid the Procter 
& Gamble ad from conveying the misleading impression 
that it is overall healthier, when in fact the opposite is true.  
 
19.  By omitting material information that would have a 
significant effect on the purchasing habits of consumers 
who may buy either of the two products compared, Procter 
& Gamble has relied on the careful development of a false 
commercial impression and not the sound nutritional 
attributes of its snack to attract customer purchases. Failure 
to grant Frito-Lay the relief requested would do no more 
than reward Procter & Gamble for creative product 
positioning and penalize Frito-Lay's willingness to invest 
the time and resources to develop what is objectively a 
nutritionally superior product.  
 
20.  The deceptive claims conveyed by Procter & Gamble's 
comparative commercial is but the latest example of a 
pattern of conduct by Procter & Gamble to rely on 
misleading comparative product representations that falsely 
portray the nutritional attributes of the products at issue.  
 
B.   PROCTOR & GAMBLE'S CAMPAIGN OF 
COMMERCIALS COMPARING PRINGLES TO FRITO-
LAY'S POTATO CHIPS  
 
21.  For many years Frito-Lay has marketed its Ruffles 
potato chips in a distinctive red, white and blue package 
and its Lays potato chips in a distinctive red, white and 
yellow package. Nationally, Frito-Lay's Ruffles potato 
chips are the leading ridged potato chips on the market and 
its Lays potato chips are the leading flat potato chips on the 
market.  
 
22.  In recent years, Procter & Gamble has pursued a course 
of conduct in which it has aired and continues to air a 
television campaign comparing its Pringles product with 
Frito- Lay's potato chips.  Procter & Gamble's comparative 
commercials disclose that a comparison is being made with 
"a national leading chip."  Several of the comparative 
commercials depict a man holding a potato chip bag with a 
simulation of Frito-Lay's trade dress, wiping grease on his 
shirt, and saying "Not this bagged chip's greasy mess." One 
such scene from a Pringles comparative commercial is 
depicted below: [Picture not available]  
 
In fact, Frito-Lay's potato chips do not contain more fat 
than Procter & Gamble's Pringles product and Frito-Lay's 
products are indeed the same or less in fat content.  Apart 
from the wiping scene above, Procter & Gamble also uses 
other visual gimmickry to misrepresent the qualities of the 
parties' products, including the use of napkins with oil spots 
meant to show that Frito-Lay's products are relatively 
unhealthy compared to the Pringles product, and using fit 
and youthful~ looking models to associate the Pringles 
product with those who follow a healthy regimen.  

23.  Recently, Frito-Lay caused a consumer survey to be 
conducted by independent researchers of Procter & 
Gamble's comparative commercial showing a man wiping 
grease on his shirt. This study demonstrates that a 
significant percentage of relevant consumers erroneously 
"understand the Pringles commercial as stating or implying 
that Pringles contain less fat, grease or oil" than Ruffles or 
other potato chips.  The study also shows that a significant 
percentage of respondents erroneously believe that Pringles 
products have a healthful nature and qualities.  In addition, 
the study shows that a significant percentage of respondents 
incorrectly believe that the Pringles product is "healthier" 
than Ruffles or other potato chips.  The percentages of 
deception from this study are set forth below for each 
misrepresentation:   
 
PERCENT DECEIVED -- MISREPRESENTATION 
 
53% -- Pringles has low or no grease content or less grease 
content than Ruffles or other potato chips.  
 
44% -- Pringles is healthy or good for you or is healthier 
and better for you than Ruffles or other potato chips.  
 
24.  Procter & Gamble's comparative commercial 
misrepresents its Pringles product (a) as containing less 
grease, fat or oil than Ruffles or other potato chips and (b) 
as being healthier than Ruffles or other potato chips.  
 
25.  The FDA and the FTC have both cautioned companies 
that the mere reference to an oil or other components of a 
food associated with fat can constitute implied claims as to 
the level of fat in a product.  The FDA has stated:   
 
"The agency advises that there are long established 
relationships between ingredients and nutrients that are 
covered under the definition of implied nutrient content 
claims .... "FDA has issued warning letters regarding foods 
that contain tropical oils (which contain significant levels 
of saturated fat) when they bear statements, like "100 
percent vegetable oil," that imply that these ingredients 
have low levels of saturated fats."  58 Fed. Reg. 2372.  
 
The FTC has stated:  
 
"FTC food cases and consent agreements also demonstrate 
the principle that statements regarding ingredients may 
have nutrient content implications.  For example, 
advertising may implicitly characterize the amount of a 
nutrient in a product through representations regarding the 
ingredients with which the product is made.  An ad may 
imply that a food is free of ingredients that are essentially 
the same from the consumer's perspective."  
 
"Consistent with its statutory authority and its commitment 
to harmonization, the Commission will look closely at 
advertisements that Day implicitly characterize the level of 
a nutrient.  The Commission will give great weight to any 
FDA determinations concerning ingredient statements in 
analyzing the net impression conveyed by the ad."  59 Fed. 
Reg. 28392.  

Here, Procter & Gamble has violated these FTC and FDA 
cautionary regulations by referring in a misleading manner 
to the level of grease, fat or oil in the parties' products.  
 
26.  Procter & Gamble's comparative commercials 
misrepresent the nature and qualities of Frito-Lay's potato 
chips by depicting what appears to be Ruffles or Lays 
smeared onto a shirt and staining the shirt, creating an 
unhealthy or unsavory image of Ruffles and Lays.  
 
27.  Procter & Gamble's comparative commercials 
misrepresent the qualities of the products of the parties in 
derogation of the standards set forth in the NLEA and the 
FTC Enforcement Policy Statement on Food Advertising, 
and is likely to deceive members of the public into 
believing that Pringles has less fat and is healthier or more 
nutritional than it is or than Frito-Lay's potato chips.  
 
28.  In August 1995 representatives of Frito-Lay met with 
representatives of Procter & Gamble at Procter & Gamble's 
place of business and provided them with copies of Frito-
Lay's survey results in an attempt to have Procter & 
Gamble cure the misrepresentations of its comparative 
advertising campaign without resorting to legal action.  On 
October 5, 1995, Procter & Gamble informed Frito-Lay in 
writing that it would not discontinue its objectionable 
comparative advertising with Frito- Lay's potato chips. 
Procter & Gamble stated it would consider the issues raised 
by Frito-Lay "in future executions on regular Pringles" but, 
as set forth in paragraphs 6-18 of this complaint, Procter & 
Gamble persists in its deceptive advertising.  A copy of 
Procter & Gamble's letter is attached as Exhibit C.  
 
COUNT I:  FALSE ADVERTISING 
 
29.  Frito-Lay re-alleges paragraphs 1 through 26.  
 
30.  Procter & Gamble's false and misleading 
representations are likely to mislead and deceive members 
of the general public into mistakenly believing that Procter 
& Gamble's Pringles products and Frito-Lay's new low fat 
baked potato crisps and Ruffles and Lays potato chips have 
nutritional, health and dietary qualities or characteristics 
different from those which they in fact possess and to cause 
consumers based on those mistaken beliefs to purchase 
Procter & Gamble's Pringles product rather than Frito-Lay' 
8 products.  
 
31.  Upon information and belief, Procter & Gamble had 
knowledge of the falsity and misleading nature of its 
comparative commercials, and wilfully caused the 
comparative commercials to be aired in order to exploit the 
false and misleading nature of the commercials and to give 
Procter & Gamble' 6 Pringles product a salability and 
profitability which it would not otherwise have.  
 
32.  Procter & Gamble's false and misleading comparative 
commercials constitute unfair competition with Frito- Lay 
and are contrary to the standards set by the NLEA and the 
FTC Enforcement Policy Statement on Food Advertising 
for the protection of the public interest in violation of 15 
U.S.C. Section 1125(a).  
 
33.  Procter & Gamble's false and misleading comparative 
commercials constitute common law unfair competition 
under the laws of various states, including the State of 
Texas. 
 
34.  Procter & Gamble's false and misleading comparative 
commercials result in the unjust enrichment of Procter & 
Gamble. 
 
35.  Procter & Gamble's acts greatly and irreparably 
damage Frito-Lay and the public and will continue to 
damage Frito-Lay and the public unless restrained by this 
Court, wherefore, Frito-Lay is without an adequate remedy 
at law.  
 
COUNT II.  DILUTION 
 
36.  Frito-Lay re-alleges paragraphs 1 through 26, 28-29, 
32, and 33.  
 
37.  Procter & Gamble's false and misleading comparative 
commercials are likely to injure the business reputation of 
Frito-Lay in violation of the anti-dilution laws of the 
various states, including the State of Texas, which prohibits 
acts "likely to injure a business reputation," Tex. Bus. and 
Comm. Code Section 16.29.  
 
COUNT III.  TRADE LIBEL 
 
38.  Frito-Lay re-alleges paragraphs 1 through 26, 28-29, 
32, and 33.  
 
39.  Procter & Gamble's false and misleading comparative 
commercials are likely to injure Frito-Lay in violation of 
the trade libel laws of the various states, including the State 
of Texas, which prohibits "a defamation expressed in 
written or other graphic form that...tends to injure 
a...person's reputation and thereby expose the person to... 
financial injury... " Tex. Civ. Prac. & Rem. Code, Section 
73.001.  
 
WHEREFORE, Plaintiff prays that: 
 
1.   Defendant, its officers, agents, servants, employees, 
attorneys and all others in active concert or participation 
with defendant be enjoined and restrained during the 
pendency of this action, and permanently thereafter, from 
using in commerce or causing to be published, any 
comparative advertising that:  
 
(1)   falsely state or imply that: 
 
(a)  Frito-Lay's new low fat baked potato crisps contain 
more sodium than they do;  
 
(b)  The absolute or comparative levels of sodium in Frito-
Lay's new low fat baked potato crisps or potato chips and 
Procter & Gamble's Pringles products have any significance 
to consumers; 
 
(c)  Frito-Lay's potato products have excessive breakage or 
using the representation shown in paragraph 9; 
 
(d)  Frito-Lay's potato products are comparatively 
unhealthy or unsavory or are nutritionally deficient;  
 
(e)  Procter & Gamble's Pringles product contains less fat, 
grease or oil than Frito-Lay's potato crisps or potato chips;  
 
(f)  Procter & Gamble's Pringles product is healthier than 
Frito-Lay's potato crisps or potato chips; or  
 
(g)  Procter & Gamble's Pringles product has a healthful 
nature and qualities; or  
 
(2)  are likely to insure the business reputation of Frito-Lay.  
 
2.   Defendant, and all others holding by, through or under 
defendant, be required:  
 
(a)  to account for and pay over to plaintiff all profits 
derived by defendant from its false and misleading 
comparative commercials, in accordance with 15 U.S.C. 
Section 1117 and the laws of the various states;  
 
(b)  to pay to plaintiff treble the amount of all damages 
incurred by plaintiff by reason of defendant's false and 
misleading comparative commercials, including all 
expenditures required to correct the false, misleading and 
disparaging descriptions and representations alleged herein, 
in accordance with 15 U.S.C. Section 1117 and the laws of 
the various states;  
 
(c)  to pay to plaintiff damages necessary to allow plaintiff 
to place corrective advertising and take other affirmative 
action, commensurate in scope with defendant's false and 
misleading advertising, to inform and educate the general 
public or the false and misleading nature of defendant's 
comparative commercials, and to allow plaintiff to continue 
said affirmative action until no applicable portion Or the 
general public any longer wrongly believes defendant's 
false and misleading representations;  
 
(d)  to pay to plaintiff the costs of this action, together with 
reasonable attorneys' fees and disbursements, in accordance 
with 15 U.S.C. Section 1117 and the laws of the various 
states;  
 
(e)  to pay to plaintiff punitive damages, in accordance with 
Tex. Civ. Prac. & Rem. Code Ch. 41; and  
 
(f)  to file with the Court and serve on plaintiff an affidavit 
setting forth in detail the manner and form in which 
defendant has complied with the terms of the injunction, in 
accordance with 15 U.S.C. Section 1116.  
 
3.   Plaintiff have such other and further relief as this Court 
deems just and equitable.  
 
 
SIEBMAN & SIEBMAN, P.C. 
 
By: /s/Clyde M. Siebman 
~James K. Ince 
421 North Crockett 
Sherman, Texas  75090 
(903) 870-0070 
 
PATTISHALL, McAULIFFE, NEWBURY, HILLIARD &  
GERALDSON  
 
David C. Hilliard 
John Thompson Brown 
Jonathan S. Jennings 
311 South Wacker Drive 
Suite 5000 
Chicago, Illinois  60606 
(312) 554-8000 
 
Attorneys for Plaintiff 
 
 
OF COUNSEL: 
 
Thomas P. Schur, Esq. 
Frito-Lay, Inc. 
7701 Legacy Drive 
Plano, Texas  75024 
(214) 334-3822