Search results for: "citric acid"

  • A class-action lawsuit filed on Monday in a California District Court alleged that dog food products containing citric acid and/or tocopherols were falsely and misleadingly advertised with representations such as “Made Without … Artificial Preservatives” and “Nothing Artificial.” Flick v. M.I. Industries, 3:26-cv-01470 (Law 360 subscription required).
  • Citric acid and tocopherols (a form of vitamin E) can be naturally derived. However, Plaintiff alleges that 99% of the world’s citric acid is synthetically produced and that therefore, by implication, Plaintiff is using (or is at least highly likely to be using) synthetic citric acid. Plaintiff notes that natural tocopherols exist in a “d” form while synthetic tocopherols exist in a “dl” form (many compounds exist in mirror image molecular structures of each other, the “d” and the “l” forms). However, Plaintiff does not connect this allegation to Defendant’s products or make clear how it was inferred that Defendant’s tocopherols are synthetic.
  • Plaintiff also indicates that citric acid and tocopherols are used to “prevent or retard deterioration of the products” and therefore meet the definition of “chemical preservative” in 21 CFR 101.22(a)(5).
  • Foods containing citric acid and tocopherols and making “no artificial preservative” claims have been previously targeted by class-action plaintiffs.
  • Celestial Seasonings, Inc. has been sued (Law360 subscription required) for allegedly falsely advertising its herbal teas as having “All Natural” flavors despite containing citric acid.
  • The complaint targets five specific herbal teas marketed by Celestial Seasonings that are labeled as “Naturally Flavored with Other Natural Flavors” with additional label statements that the company “blends its ‘teas from the finest ingredients with no artificial flavors or colors.’” According to the complaint, Celestial Seasonings also makes several claims on its website related to its ingredients, including “[t]he natural flavors we use are derived from real ingredients and do not contain artificial or synthetic additives.”
  • However, the complaint says that the ingredient list for each of the five teas includes citric acid, which is primarily synthesized using Aspergillus niger, rather than being extracted from fruits and vegetables. The complaint alleges that Celestial Seasonings adds citric acid to its teas as a flavoring agent, rather than as a preservative. Further, according to the plaintiff, because citric acid is listed separately from “natural flavors” in the ingredient list, it is implied to be manufactured, rather than natural, citric acid.
  • Notably, under 21 CFR 101.22(i), a product should bear the characterizing flavor statement “naturally flavored with other natural flavors” where it contains a both characterizing flavor derived from the product whose flavor is simulated and other natural flavor which simulates, resembles, or reinforces the characterizing flavor.
  • Products containing citric acid but labeled as “natural” or containing no artificial ingredients are often targets of similar class action lawsuits, as we have blogged. Keller and Heckman will continue to monitor litigation related to food labeling.
  • The Campbell’s Company has been sued (Law360 subscription required) for allegedly falsely advertising its Cape Cod Kettle Cooked Potato Chips as containing “no artificial colors, flavors, or preservatives,” despite containing citric acid, which is synthetic, according to the complaint.
  • The plaintiff alleges that the label on the Cape Cod chips “puts forth a straightforward, material message: the Products contain only coloring, flavoring and preservative ingredients that are natural and not synthetic.” According to the plaintiff, the claims are made to “capitalize on the growing market for natural products,” for which consumers are willing to pay a premium.
  • The complaint further alleges that natural citric acid is no longer commercially available, and only synthetic citric acid is used in packaged foods. Further, the complaint cites FDA Warning Letters from 2001 that state products could not be labeled as “natural” because they contained citric acid.
  • Finally, the complaint states—without citing to any evidence—that synthetic citric acid consumption has been linked with various adverse health effects.
  • Keller and Heckman will continue to monitor this and other food related litigation.
  • Yesterday, a proposed false advertising class action was filed in California against Handel’s, alleging the ice cream retailer claims its frozen treats are “homemade,” use “the best ingredients,” and follow “original methods and recipes” dating back to 1945, though the products reportedly contain artificial food dyes and polypropylene glycol.  (Law360 subscription required.)
  • In the complaint, the plaintiff claims that Handel’s advertises that its “homemade ice cream” uses fresh, high-quality ingredients, but that its strawberry ice cream, for example, contains carrageenan, ethyl alcohol, propylene glycol, citric acid, and synthetic food dyes like Blue 1 and Red 40.  The complaint also alleges that these synthetic ingredients are hidden, because the company does not list or disclose its ingredients in its stores or website.  Additionally, Handel’s claims on its storefronts, merchandise, signage, napkins and packaging that its ice creams are made fresh daily, or made fresh daily at each location, according to the complaint.
  • The suit asserts several causes of action against Handel’s, including violations of California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law, as well as breaches of express and implied warranties, unjust enrichment, and common law fraud.
  • The complaint explicitly makes reference to California’s School Food and Safety Act, which passed last year.  As we previously reported, California’s AB 2316 became the nation’s first-ever bill banning public schools in the state from serving foods to children that contain Red 40 and various other synthetic food dyes.  Other states have followed suit and the “Make America Healthy Again” (MAHA) movement aims to phase out synthetic, petroleum-based food dyes in the US food supply.
  • Keller and Heckman LLP will continue to monitor developing legislation and litigation surrounding artificial food dyes.
  • In yet another lawsuit filed by attorney Spencer Sheehan, Plaintiffs alleged that Aldi’s diced peaches products (“Yellow Cling Diced Peaches in 100% Fruit Juice”) violate FDA’s regulations and are falsely and deceptively labeled, in part because they are made from concentrate (the ingredient list identifies “white grape juice concentrate” and “lemon juice concentrate”) and contain the food additives ascorbic acid and citric acid. Plaintiffs claim these ingredients are inconsistent with a 100% juice declaration.
  • However, the lawsuit does not reference the fact that FDA’s regulations at 21 CFR 101.30(h)(1) provide that FDA is to calculate the percentage juice content of a reconstituted juice (i.e., a juice from concentrate) based on the Brix level (a measure of dissolved solids) of a reference single-strength (100%) juice. Thus, a reconstituted juice is not necessarily inconsistent with a 100% juice declaration. This point is also implicitly stated in paragraph (b)(3) which requires that other additives be declared when a 100% juice declaration is made, although for a 100% juice claim to be made such additives cannot result in a diminution of the “juice soluble solids” (i.e., Brix). 
  • Compliance or non-compliance with FDA’s regulations does not in itself provide evidence of consumer deception and the Court will have to decide whether a substantial portion of reasonable consumers would have been deceived under the circumstances. Nevertheless, compliance with FDA’s regulations likely will be a critical aspect of any preemption defense. In a case with some similarities, Bell v. Albertson Companies, Inc., No. 19-2741 (7th Cir. 2020), the 7th Circuit reversed a district court decision and held that Plaintiffs had plausibly alleged that a 100% grated parmesan cheese claim was deceptive when the product contained cellulose powder and potassium sorbate additives. Notably, a preemption defense was rejected because, while the additives were consistent with FDA’s standard of identity for parmesan cheese, the standard of identity did not address the 100% claim.
  • Last month, the U.S. District Court for the Southern District of New York dismissed a class-action lawsuit alleging that Snapple beverage products (e.g., Snapple Apple) were falsely and misleadingly labeled as “all natural” because they contained (1) vegetable and fruit juice concentrates added for color and (2) citric acid, which Plaintiffs alleged is commercially made by fermentation of Aspergillus niger and “recovered through numerous chemical reactions with synthetic mineral salts and reagents.”
  • In regard to the vegetable and fruit juice concentrates, Plaintiffs had conceded that they came from natural sources, but argued that an “all natural” claim was nevertheless misleading because FDA’s informal natural policy considers “natural” to preclude the inclusion of any color additive, regardless of source. The Court held that FDA’s regulations, and in particular its informal views, “are irrelevant or at least not dispositive when it comes to determining whether a reasonable consumer would be misled.” It also found it implausible that a reasonable consumer would distinguish fruit and vegetable concentrates added for color from similar concentrates not added for color. Finally, the Court held that “all natural” was an ambiguous phrase, that a reasonable consumer would “seek clarification elsewhere on the package,” and that the ingredient list dispelled any ambiguity.
  • In regard to the citric acid allegations, the Court held that generalized claims about the method of production were insufficient, and even if the claims were true, it would be not be dispositive because there were no claims that the finished citric acid product contained synthetic ingredients or differed from citric acid found in nature.
  • The case is one of many food litigation lawsuits filed by attorney Spencer Sheehan. 
  • A class-action lawsuit was filed (Law360 subscription required) last week alleging that Defendants’ Motts, LLP and Keurig DR Pepper Inc. falsely and misleadingly labeled their product, “Mr. & Mrs. T Original Bloody Mary Mix,” as containing “no added preservatives” when it contains citric acid, which is alleged to function as a preservative.
  • FDA defines “preservative” in part as “any chemical that, when added to food, tends to prevent or retard deterioration thereof, but does not include common salt, sugars, vinegars, spices, or oils extracted from spices . . .” 21 CFR 101.22(a)(5). Citric acid is affirmed as GRAS in 21 CFR 184.1033 for general use in food. The Food Chemicals Codex monograph for citric acid describes its functions as a “sequestrant; dispersing agent; acidifier; flavoring agent.”    
  • Plaintiff argues that the primary function of citric acid in the product is as a preservative, regardless of any other functions it may perform, especially because “Defendants have not declared a contrary purpose for adding citric acid and the Products separately contain flavorings (i.e., ‘natural flavor’) as an ingredient.” However, we note that products may contain multiple flavors, and there is no requirement that a flavor be declared as such (i.e., citric acid, when used as a flavor, could be declared as “citric acid.”). Furthermore, citric acid could be used as a “flavor enhancer,” a substance “added to supplement, enhance, or modify the original taste and/or aroma of a food, without imparting a characteristic taste or aroma of its own.” 21 CFR 170.3(o)(11).
  • At the pleadings stage, the Court will have to decide whether Plaintiff has sufficiently alleged that citric acid acts as a preservative. Compare Hu v. Herr Foods, Inc.,251 F. Supp. 3d 813 (E.D. Pa. 2017) (holding that plaintiff failed to adequately allege that citric acid acts as a preservative in the product at issue) with Mason v. Reed’s Inc., 515 F. Supp. 3d 135 (S.D.N.Y. 2021) (holding that Plaintiff had adequately alleged that citric acid acted as a preservative). Although such cases frequently settle, we will continue to monitor and report on any substantive decisions in this case.
  • A proposed putative class action lawsuit has been brought against the dietary supplement manufacturer, Nordic Naturals, Inc., and claims that the defendant has made false, misleading, and deceptive representations on product packaging (subscription to Law360 required). Specifically, the plaintiff claims declaration of the company name “Nordic Naturals” and its prominent appearance at the top of all packaging constitutes false advertising because the product contains synthetic ingredients, such as gelatin, soy lecithin, maltodextrin, ascorbic acid, beta-carotene, riboflavin, niacin, thiamine mononitrate, microcrystalline cellulose, citric acid, pectin, sodium citrate, folic acid, silica, potassium, chloride, stearic acid, and silicon dioxide, among others.
  • In a motion to dismiss, Nordic Naturals argued that it never labeled the products as “all natural” or “100% natural” and therefore no reasonable consumer would be deceived based on the presence of synthetic ingredients. However, on September 28, a New York federal judge denied the motion to dismiss stating that the defendant’s argument relies on too fine a distinction to succeed at this stage of the suit. Judge Nina R. Morrison said “Here, the court agrees with the numerous other courts that have found this distinction unpersuasive at the motion to dismiss stage. Defendants have failed to show, as a matter of law, that while a reasonable consumer would be deceived by an ‘all natural’ or ‘100% natural’ representation, she would not be deceived by a prominent representation of ‘Naturals’ on the label.
  • Judge Morrison also disagreed with Nordic Naturals that the plaintiff could not have been misled because the back panel declares the full ingredient list. Judge Morrison referenced the Second Circuit’s 2018 ruling in Mantikas v. Kellogg Co., stating that reasonable consumers do not anticipate that the ingredients will contradict representations made on the front panel. Rather, consumers expect the ingredient list to contain more detailed information about the product that confirms other label representations.
  • Keller and Heckman will continue to monitor any developments in this case.
  • Yesterday, FDA announced its issuance of a request for information on a citizen petition asking the Agency to amend the standard of identity (SOI) for pasteurized orange juice (POJ) by lowering the minimum soluble solids content, known as the Brix level. The current SOI for POJ requires that the product contains not less than 10.5 percent by weight of orange juice soluble solids (also expressed as degree Brix), exclusive of the solids of any added optional sweetening ingredients, and the ratio of the Brix hydrometer reading to the grams of anhydrous citric acid per 100 milliliters of juice is not less than 10 to 1 pursuant to 21 CFR 146.140(a).
  • The citizen petition, Docket No. FDA–2022–P–1668, filed by the Florida Citrus Processors Association and Florida Citrus Mutual on July 25, 2022, asks the FDA to reduce the Brix level, or minimum soluble solids requirement, from 10.5 to 10 percent, citing that the average Brix level of Florida’s orange crop has steadily dropped over the past couple of decades due to a bacterial disease called “citrus greening” and severe weather. Lowering the minimum level of soluble solids might reduce the sweetness of the juice and the levels of certain nutrients.
  • The request for information seeks comment on several areas, including consumer acceptance and nutritional value of pasteurized orange juice with a lower minimum soluble solids content. The FDA is requesting the information to determine whether the SOI for pasteurized orange juice should be amended.
  • Comments are due by October 16, 2023 and may be submitted electronically here. Specifically, FDA requests comments, data, and information about the issues presented in the petition.
  • Keller & Heckman will continue to monitor developments regarding the SOI for POJ.
  • On May 19, Coca-Cola filed a motion to dismiss in an Illinois federal court, requesting the judge to throw out a proposed class action alleging it misleads consumers into thinking its Fresca brand of soda water contains real fruit with no added sweetener. See Letoski et al. v. The Coca-Cola Co., case number 1:23-cv-00238, in the U.S. District Court for the Northern District of Illinois.
  • Earlier this year, consumers filed suit against Coca-Cola, alleging that its Fresca products’ “Grapefruit” and “Black Cherry” flavor descriptions, which are accompanied by vignettes of the relevant fruits, caused them to believe the soft drinks contain “non-negligible amounts” of “fruit ingredients.” Although the products contain “concentrated grapefruit juice,” the complaint alleges that the amount must necessarily be “de minimis” because (1) there is less grapefruit juice than “citric acid”; and (2) “based on industry estimates of the use of citric acid in carbonated beverages” the Fresca products probably contain “roughly 0.60 grams of citric acid.” This is deceptive, the complaint alleges, because the products contain only “fruit flavoring.”
  • Further, the plaintiffs allege that the term “soda water” caused them to think that Fresca is simply “carbonated water” without any “added sweeteners or flavorings,” when the Fresca products contain aspartame, a non-nutritive sweetener.
  • In its motion to dismiss, Coca Cola contends that the product labels are in full compliance with FDA’ food labeling regulations, arguing that the characterizing flavor regulation at 21 CFR 101.22(i) do not require real fruit ingredients to be in a product bearing fruit-related terms and vignettes, but rather must be accompanied only by a disclosure about the source(s) of the product’s flavoring ingredients (e.g., “natural flavors,” “other natural flavors,” or “artificial flavors”). Thus, according to the defendant, the ““Black Cherry Citrus Flavor with Other Natural & Artificial Flavors” designation and fruit vignette on Fresca communicates that the beverage contains black cherry flavors, not actual cherry ingredients. Additionally, the Fresca products contain “concentrated grapefruit juice,” a fruit-based ingredient.
  • Additionally, Coca Cola argues that plaintiffs have no basis to conclude the term “soda water” promises consumers a product with no added sweeteners, claiming the use of the artificial sweetener aspartame in Fresca is properly disclosed on product labeling. The company reasoned that a reasonable consumer interested in knowing about the presence of sweeteners in product can find the ingredients declared on the product ingredient list.
  • Keller and Heckman will continue to monitor consumer class actions regarding challenges to food label claims.