Pepsi Falsely Touts ‘No Preservatives’ In Izze Drinks, Suit Says (Subscription to Law360 required)
- On December 1, PepsiCo and the equity firm behind Tropicana, PAI Partners, Inc., were named defendants in a proposed class action suit in New York federal court for its Izze-brand sparkling juice products which contain the common ingredients ascorbic and citric acids.
- In an 18-page complaint, plaintiff Taylor alleged that the companies “systematically misled” the public by purportedly claiming the popular Izze sparkling juice beverages contain no preservatives, which she claims is a marketing tactic aimed towards health-conscious shoppers looking for more options that don’t contain preservatives.
- The Izze-brand drinks include the phrase “NO PRESERVATIVES” on the front label; however, the ingredient statements featured on the product labels list both citric acid and ascorbic acid. The Izze line of drinks includes a variety of flavors such as sparkling blackberry, blackberry lemonade, peach, apple, pomegranate, clementine and grapefruit.
- According to the complaint, citric acid functions as a preservative by acting as an acidulant and indirect antioxidant. Citric acid infiltrates, then either weakens or kills microorganisms in a product through direct antimicrobial effect and can lower a product’s pH level, according to the suit. Citric acid is one of the most widely-used acidulants in the food and beverage industry.
- The complaint similarly claims that ascorbic acid, like citric acid, functions as an antioxidant that helps prevent microbial growth and oxidation in food products, thereby preserving their color and freshness. The FDA regulates the use of ascorbic acid in the formulation of wine and juice “to prevent oxidation of color and flavor components of juice” pursuant to 27 C.F.R. § 24.246. The complainant alleges that ascorbic acid, like citric acid, has preservative effects even when used in small amounts, which in turn supports the conclusion that the products contain preservatives.
- Plaintiff Taylor asserts violations of state consumer protection statutes and violations of New York General Business Law sections 349 and 350, and seeks relief in the form of compensatory, statutory and punitive damages, along with attorney fees and costs.
- The case is Tiffany Taylor v. PepsiCo Inc. and PAI Partners Inc., case number 7:22-cv-10219, in the U.S. District Court for the Southern District of New York, and is another in the line of class action challenges to the use of preservative claims for products containing multipurpose ingredients like ascorbic and citric acid. Defendants typically respond that these ingredients are used to add tartness to the product and are not used for any preservative effect.
- Keller and Heckman will continue to monitor this case and report on any notable developments.