Coke’s Piña Colada Fanta Not The Real Thing, Suit Says (Law360 Subscription Required)
- On October 28, 2021, a class action lawsuit was filed against the Coca-Cola Company (Coke), alleging that Coke’s piña colada-flavored Fanta soda is deceptively labeled with a claim of “100% Natural Flavors” where laboratory testing detected the presence of DL-malic acid. In contrast to L-malic acid, which occurs naturally in many fruits, DL-malic acid is commercially manufactured and is considered by some to be artificial.
- According to the pleading in the case, Hawkins v. The Coca-Cola Company, filed in the New York Southern District, the DL-malic acid is used to impart a ripe pineapple flavor in the Fanta soda, which makes the label claim of “100% Natural Flavors” false because DL-malic acid is synthetically produced from petroleum products. The complaint also alleges that a cloudy appearance, similar to pineapple juice, and pictures of a pineapple wedge and coconut on the label further lead consumers to believe that the piña colada-flavored Fanta soda contains only natural flavors. The ingredient statement on the soda includes “natural flavors” and “malic acid.” Malic acid may be used as a food ingredient in a variety of ways, including as a flavor enhancer, flavoring agent and adjuvant, and as a pH control agent. See 21 CFR 184.1069 (“Malic acid”). Coke has not commented on the proposed class action or otherwise indicated what function malic acid performs as an ingredient in the piña colada-flavored soda.
- We have previously discussed the difficulty of making natural flavor claims for products containing DL-malic acid and/or other ingredients that may serve multiple functions. These cases are not amenable to early dismissal because courts generally consider the function of malic acid, including distinctions between “flavor” versus “flavor enhancer,” to be a question of fact. Keller & Heckman will continue to monitor and provide updates regarding class-action litigation in the food industry.