Consumer Fights Bid To Ax Kombucha Beer False Ad Claims (Law360 Subscription Required)

• On October 24, 2021, a proposed consumer class action lawsuit was filed in the Northern District of Illinois alleging that the labeling of Fermented Sciences Inc’s Flying Embers brand Hard Kombucha and Hard Seltzer beverages deceives consumers about the health benefits of these alcoholic beverages.  As discussed here, the label statements at issue include “Antioxidant Vit[amin] C,” “Antioxidants,” “Real Botanicals,” and “Crafted with Live Probiotics,” among other claims like “Brewed with Benefits.”
• According to the plaintiff’s memorandum filed April 11, 2022, the beverages’ label statements imply health benefits, thus changing what a reasonable consumer would otherwise glean from the federally required warnings on the alcohol products.  The plaintiff further asserts that the defendant’s March 18, 2022 motion to dismiss conflates her claim that the labeling leads a reasonable consumer to believe the “beers were more good than bad” with the absurd belief, not put forth in her complaint, that the products’ vitamins and antioxidants make her “immune” to the adverse effects of alcohol consumption.
• FDA’s Q&A guidance on its fortification policy (discussed here) states that the agency does not consider it appropriate to add vitamins to alcoholic beverages.  Neither memorandum in this case, however, discusses in detail whether the kombucha and hard seltzer label statements (including “Antioxidant Vit C”) are consistent with the nutrient objectives of FDA’s food fortification policy under 21 CFR 104.20.