• The Kraft Heinz Co. has agreed to settle in principle a proposed class action lawsuit that claims the MiO brand drink mixes falsely claimed to contain only natural flavors on their labels (subscription to Law360 required). Specifically, named plaintiff, Sandra Adams, alleged in the June 2022 complaint that The Kraft Heinz Co. was misleading consumers by advertising MiO as having no artificial flavors when it actually contained malic acid, which Adams called an “artificial petrochemical.”
  • The complaint sought to certify a class of consumers from Alabama, South Carolina, Tennessee, and Virginia, as well as a separate class for plaintiffs in Florida. Adams claimed all of the plaintiffs would not have paid the full price of the MiO products had they known the product contained malic acid. The Kraft Heinz Co. originally sought to dismiss the proposed class action and argued that Adams had not sufficiently shown that malic acid is an artificial flavor. However, the motion to dismiss was denied.
  • Details of the intended settlement have not been disclosed, nor has a settlement agreement been filed, but an order dismissing the case was filed on August 25.
  •  On September 4, 2022, a class-action lawsuit was filed against Conagra for allegedly deceptively advertising its “Chile Lemon Flavor Sunflower Seeds” by failing disclose that the product was artificially flavored with DL-malic acid.
  • The complaint alleged that although the product contained aged chili peppers and lime juice solids (sources of natural flavor), malic acid is a “core component of chili pepper and lime,” and therefore also imparts flavor on the product. And, since the (DL) malic acid in question was synthetically produced (L-malic acid is the only form present in natural sources), Plaintiff argued that the product should disclose that an artificial flavor is present (e.g., Artificially Flavored Sunflower Seeds). Plaintiff also argued that, even if the malic acid acted as a flavor enhancer (which reinforces a flavor but does not impart its own flavor), the flavor statement should be “Chile Lemon Flavored” to indicate that the product does not contain “an amount of its characterizing ingredients sufficient to independently characterize it.”
  • We have previously reported on similar lawsuits, many of which have been filed by Spencer Sheehan, Plaintiff’s attorney in this case. We will continue to monitor and report on these and other similar flavor cases.
  •  On March 14, 2022, a class-action lawsuit was filed against Publix Super Markets, Inc. for allegedly improperly and deceptively labeling their “strawberry watermelon water enhancers” (the “product”) as flavored with “natural flavor with other natural flavors.” In addition to the direct representation of the flavor in the flavor statement, the front panel of the product also included pictures of strawberries and watermelon slices, as well as red coloring in the surrounding packaging and text.
  • Malic acid was listed in the product as the second-most predominant ingredient (after water). Malic acid comes in two stereoisomeric forms (i.e., the atoms differ in their spatial arrangement, but have the same chemical formula and are connected in the same order): L-malic acid, which naturally occurs in fruits, and D-malic acid, which is manufactured from petroleum products and is commonly found in an equal mixture with L-malic acid (i.e., DL-malic acid). Plaintiff alleged that testing of the product revealed that it contained DL-malic acid, which is an artificial ingredient, and that it impacted the flavor profile of the product. Therefore, Plaintiff alleged that the product should have been labeled as “artificially flavored” or “artificial” to avoid misleading consumers and to be in accord with 21 CFR 101.22(i)(2).
  • There have been many similar lawsuits challenging the use of natural flavoring claims in products containing malic acid. See Examples. Defendants will often argue that DL-malic acid does not contribute to the flavor profile of the food and so it need not be considered in the flavoring statement. They often make a distinction between malic acid used as a “flavor enhancer” as opposed to a “flavoring agent” as defined in 21 CFR 170.3. However, while such arguments may have merit, the determination of whether a particular substance contributes to the flavor profile of a food is a fact-intensive one which cannot be resolved as the pleadings stage of litigation. Thus, these lawsuits are rarely dismissed.
  • Plaintiff also alleged that DL-malic acid was improperly declared as “malic acid” instead of “DL-malic acid” in the ingredient list. However, at least one court has held that the requirement to list an ingredient by its common or usual name does not require that malic acid be listed by its specific isomer and that simply “malic acid” is appropriate.

 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.

 

 

  • Malic acid is a compound that is 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”). L-malic acid occurs naturally in some foods, including many fruits. In contrast, DL-malic acid is commercially manufactured and considered by some to be artificial.  Plaintiffs have frequent targeted the use of DL-malic acid in foods that are advertised as naturally flavored and free of artificial flavors. They have argued that DL-malic acid is artificial and imparts flavor to the food, and therefore that food products which contain DL-malic must be labeled as artificially flavored. In contrast, Defendants have generally argued they are not using DL-malic acid as a flavoring agent, and therefore it is not misleading to label their products as naturally flavored and/or free of artificial flavors.
  • Following this pattern, in Hayes v. General Mills, CA No. 19-cv-05626, Plaintiff had brought a proposed class action against General Mills alleging that the company had falsely and intentionally mislead consumers with claims that various fruit flavored snacks (sold under the brands names “Fruit by the Foot,” “Gushers,” and “Fruit Roll-ups”) were free of artificial flavors when they in fact contained DL-malic acid which contributed to the flavor of the products. General Mills had moved to dismiss the complaint on the grounds that DL-malic acid was not used as a flavor and therefore that the flavor statement was not deceptive. Specifically, the company argued that they use DL-malic acid in the food snack products as a flavor enhancer and not a flavor, and thus the products cannot be artificially flavored by DL-malic acid. While a “flavor” imparts flavor, a “flavor enhancer” is 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.” See 21 CFR 101.22 (a)(1) (defining “ artificial flavor”) and  21 CFR 170.3(o)(11) (defining “flavor enhancer”). In other words, both parties agreed that DL-malic acid impacts the taste, but they disagreed as to whether the change in taste constituted a flavor.
  • The Court held that the distinction between a “flavor” and a “flavor enhancer” was a factual dispute that could not be resolved on a motion to dismiss, and thus allowed Plaintiff’s deceptive advertising claims to proceed. However, the Court denied Plaintiff’s request for injunctive relief because there was no immediate threat of future violation of Plaintiff’s rights. While Plaintiff may have been deceived into purchasing the product at issue, there was no such present risk where Plaintiff was aware of the alleged deception and was suing the company for it. The Court also rejected the argument that there was imminent harm to other unaware consumers and held that Plaintiff could not rely on prospective harm to other consumers to demonstrate that injunctive relief was appropriate.
  • The case demonstrates the difficulty of making natural flavor or free of artificial flavoring claims with products containing DL-malic acid and/or other ingredients that may serve multiple functions, including as flavoring agents (citric acid is another ingredient that is frequently invoked in flavor litigation). Even if a defendant ultimately prevails, it may find it difficult to avoid much of the cost of litigation since the pivotal question on the role of a substance in a food (i.e., flavoring agent or not) are factual and cannot be determined at the motion to dismiss stage.

Bai Fruit Drinks Sued Over ‘All-Natural’ Labeling (subscription to Law360 required)

  • A national putative class action lawsuit (with proposed in-state subclass) was filed in California federal court on April 19, 2018 against Bai Brands, LLC alleging violation of California’s Consumers Legal Remedies Act, Unfair Competition Law, and common law, as well as the U.S. Food and Drug Administration’s (FDA) regulations.  The plaintiff alleges that Bai Brands falsely advertised fruit drinks as ‘natural’ and did not disclose malic acid, alleged to be a synthetic flavor used to mimic fresh fruit, on front of package labeling.  (Branca v. Bai Brands, LLC, 3:18-cv-00757).
  • Natural lawsuits continue to proliferate despite court ordered stays being granted in several challenges due to pending FDA action.  As previously covered on this blog, FDA is considering whether to regulate the term “natural,” having collected 7,687 comments in 2016 on use of the term ‘natural’ on human food labeling.
  • Commissioner Scott Gottlieb acknowledged the lack of clarity on the meaning of ‘natural’  in March 29, 2018 remarks at the National Food Policy Conference in Washington, DC and said FDA “will have more to say on the issue soon.”  It remains to be seen how long courts will continue to wait for FDA to act.

 

  • On Monday Campbell Soup Company was hit with a class-action lawsuit (Law360 subscription required) which alleged that the company’s V8 line of products are deceptively labeled and mislead consumers into thinking that the products are “wholesome, naturally-flavored, healthful fruit-juice beverages for kids,” when in fact they are allegedly “almost entirely water and high fructose corn syrup, artificially flavored to taste like fruit juice.”
  • Based on the ingredient lists, Plaintiffs allege that products contain at most 1-2% of the fruit and berries on the labels, and in some cases, none at all. Citing to Campbell’s own online statements, Plaintiffs also allege that the products contains synthetic malic acid which is used for flavor.
  • The products depict various fruits on the principal display panel with characterizing flavor statements such as “berry flavored . . . with other natural flavor.” Under the flavor labeling regulations in 21 CFR 101.22(i), the characterizing flavor must be labeled as “artificially flavored” or “artificial” if it contains any artificial flavor which “simulates, resembles, or reinforces the characterizing flavor.” Defendant is likely to argue that the malic acid is used as a “flavor enhancer” (supplementing a taste or aroma without imparting its own taste or aroma) and not a “flavoring agent” (imparting its own taste or aroma).
  • Plaintiffs also allege that the products are deceptively labeled as sources of antioxidants and vitamins, where in fact these nutrients are alleged to be randomly added in violation of FDA’s fortification policy and in amounts that are negligible in comparison to real fruit juice.
  • We will continue to monitor and report on this and other litigation in the food industry.
  • In a December 30 order, an Illinois federal judge dismissed a proposed class action lawsuit against Target which alleged that the brand’s Market Pantry “fruit punch” flavored concentrated liquid water enhancer misled consumers into believing the product contained only natural fruit flavoring (subscription to Law360 required).
  • The Market Pantry “fruit punch” product declares “Natural Flavor with Other Natural Flavors” on the principal display panel and lists “malic acid” as the second ingredient. Plaintiff Jessica Gouwens argued that based on her own lab analysis, the product contained artificial dl-malic acid, and therefore the product’s front label should have also disclosed the presence of artificial flavor. She alleged that she would not have purchased the product had she known that dl-malic acid was an ingredient.
  • However, U.S. District Judge Iain Johnston held that Plaintiff Gouwens did not sufficiently plead that the flavor labeling omission would mislead a significant portion of the targeted consumers to be deceived or misled into thinking that the product’s taste was only from natural flavors. The flavor labeling statement “Natural flavor with other natural flavors” does not amount to an affirmative representation that the product is free from artificial flavors. Indeed, Judge Johnston states “[a] reasonable consumer would not believe that a shelf-stable, bright red fruit punch flavored liquid water enhancer was free of artificial ingredients absent an affirmative statement to the contrary.”
  • Gouwens sought to pursue her claims on behalf of a class of Illinois consumers, as well as consumers in several other states, for violations of consumer fraud laws. The case was dismissed with prejudice.

Kroger Hit With False Ad Suit Over ‘Naturally Flavored’ Water (Law360 Subscription Required)

  • On November 28, a putative class action suit filed in Ohio federal court alleges that The Kroger Company misleads shoppers by falsely advertising that its sparkling waters are “naturally flavored,” despite adding malic acid derived from petrochemicals, which the plaintiff alleges imitates the characterizing flavor of the names fruit in its beverage products.
  • Plaintiff Cameron claims she bought the beverages at Kroger locations over the course of five years between 2016 and 2021 in Ohio and Tennessee after relying on the statements made on the products’ labels.
  • Kroger labels and advertises its sparkling waters as containing different characterizing flavors like strawberry, white grape, mixed berry, kiwi strawberry, blueberry pomegranate, black cherry and pineapple coconut. Plaintiff Cameron alleges that the characterizing flavors are not exclusively derived from the named fruit ingredients.
  • Plaintiff seeks several forms of relief on behalf of fellow shoppers over Kroger’s allegedly deceptive marketing practices, including a court order compelling the grocery giant to stop packaging, distributing, advertising and selling the products that it alleges are in violation of U.S. Food and Drug Administration regulations.
  • The case is Mary Cathleen Cameron v. The Kroger Company, case number 1:22-cv-00694, in the U.S. District Court for the Southern District of Ohio.
  • Keller and Heckman will continue to monitor any developments in this case.

 Target Wants Juice Pouch Labeling Suit Popped (Law360 Subscription Required)

  • A federal class action complaint, filed June 22, 2022, alleges the words “Natural Flavor With Other Natural Flavor” directly below “Fruit Punch” render the omission of “artificially flavored” deceptive on Target Corporation’s label for Market Pantry brand liquid beverage concentrate water enhancer containing malic acid as the second-most predominant ingredient (after water).  We have reported on a similar class-action lawsuit filed against Publix Super Markets, Inc. for their “strawberry watermelon” water enhancer.  In both cases, the plaintiffs allege that testing detected DL-malic acid, which is an artificial form of malic acid that impacts the characterizing flavor of the products and, therefore, the products should have been labeled as “artificially flavored” or “artificial” to avoid misleading consumers and to comply with 21 CFR 101.22(i)(2).
  • In a memorandum filed July 13, 2022, Target disputes whether the plaintiff has plausibly alleged that the malic acid in the product acts as a “flavor” and that it is “artificial.”  In addition to these assertions, as wells as the related arguments over distinctions between a “flavor enhancer” and a “flavor” under FDA’s regulations, which courts have found cannot be resolved on a motion to dismiss, Target has also built arguments for dismissal based on the assertion that it never made any representation on the product’s label or elsewhere that the water enhancer was all-natural or free of artificial flavors.  Specifically, the memorandum argues that the artificial flavor status of malic acid is immaterial because the omission of an “artificially flavored” statement, even if it were required for malic acid (Target argues it is not), does not transform the FDA-mandated statement “Natural Flavor With Other Natural Flavor” into a claim that the water enhancer is “all natural,” nor would it lead a reasonable consumer to assume that a shelf-stable, bright red “fruit punch” concentrate is free of artificial ingredients.
  • Unless there is room to argue that consumers who wish to avoid artificial ingredients may for some reason be uniquely concerned with flavors, as opposed to the artificial status of ingredients with other functions, such as sweeteners or colors, the court may possibly grant Target’s request for dismissal on the basis that noncompliance, if any, with FDA’s flavor labeling regulations, would not deceive a reasonable consumer about the “natural” quality of the fruit punch water enhancer.