Search results for: preservative

  • 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.
  • Plaintiffs’ attorney Spencer Sheehan has filed two very similar lawsuits in the New York Supreme Court (the court of general jurisdiction in New York), alleging that products containing soy lecithin and xanthan gum were misleadingly advertised, including with “no artificial preservative” claims.
  • Lukas v. Flora Food US Inc., No. 618126/2025 (filed February 9, 2026) alleges that soy lecithin can act as a preservative by “contribut[ing] to a less favorable environment for microbial growth, thereby preventing spoilage.” The lawsuit therefore alleges that the presence of soy lecithin renders the claims “farm grown ingredients,” “country fresh taste,” and/or “no artificial preservatives” false and/or misleading. The complaint contradicts itself by alleging that soy lecithin creates a less attractive environment for microbial growth by limiting moisture (¶ 49) and helping to retain moisture (¶ 52). No citation is provided for either claim.
  • Barreca et al. v Ken’s Foods Inc., No. 518219/2025 (filed October 16, 2025) makes essentially the same allegations (with much of the same wording) except in relation to a product containing xanthan gum and making a “no artificial preservatives” claim. The complaint alleges that “studies show xanthan gum can inhibit lipid oxidation when used in dressings.”
  • Both complaints also allege that artificial preservatives act as “markers” for ultra processed foods, and curiously, that the “inability [of the general population] to garden, hunt, and harvest left them at the mercy of the distant manufacturer and canner.”
  • There has not yet been a substantive decision in either case. The cases can be found on the New York Supreme Court case search system by searching by the case numbers. 
  • Gerber filed a memorandum (Law360 subscription required) in support of its motion to dismiss a proposed class action that claimed the company had falsely advertised its baby food snack products as containing “no preservatives” even though they contained vitamin C. According to the lawsuit filed in November of 2023, the products were marketed in a misleading manner by bearing a label claim that they do not contain preservatives and listing the ingredient as “Vitamin C (Ascorbic Acid).” The plaintiffs allege that vitamin C is a preservative regardless of whether it is added to preserve the food or for some other purpose.
  • Ascorbic acid is generally recognized as safe for use in human food as both a chemical preservative and a nutrient. According to Gerber, the complaint is preempted because it conflicts with FDA’s regulatory scheme, “which does not require an ingredient to be labeled as a preservative unless it serves a preservative function.” Gerber claimed that vitamin C is used to fortify the products nutritionally, which are preserved through freeze drying, eliminating the need for further preservatives.
  • Gerber stated that consumers could not have been deceived by the “no preservatives” label since there is no ingredient in the products functioning as a preservative. It argued that it is “fanciful, illogical, and insufficient” to support a deception claim based on the theory that “no preservatives” should be interpreted to mean that there are no ingredients that could possibly function as a preservative, even if that is not their intended use.
  • This is one more case in a string of recent lawsuits challenging “no preservative” claims on products that contain ingredients that could function as a preservative. Keller and Heckman has previously blogged on and will continue to monitor these lawsuits.
  • 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.

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.

Ill. Judge Trims Fraud Suit Targeting Barilla Pasta Sauce (subscription to Law360 required)

  • A proposed class action lawsuit filed against Barilla America Inc. in October 2018 alleges that consumers in Illinois, California, and Kansas were misled by the claim “no preservatives” on jars of pasta sauce containing citric acid as an ingredient.  The plaintiffs assert that Barilla’s pasta sauce is deceptively labeled as containing no preservatives because the U.S. Food and Drug Administration (FDA) recognizes citric acid as a preservative that delays rancidity, prevents spoilage, and slows certain other changes in food.
  • On December 10, 2021 a federal judge in the Northern District of Illinois ruled from the bench that consumer fraud, breach of warranty, and unjust enrichment claims can proceed against Barilla over the allegedly deceptive labeling.  The judge ruled against the plaintiffs on implied warranty and negligent misrepresentation claims, although leave to amend was granted.  The judge also denied injunctive relief, finding that plaintiffs’ future harm is conditional, being dependent on their choosing to purchase the pasta sauce again as opposed to purchasing a different brand or making their own pasta sauce.
  • As discussed here, a similar false advertising lawsuit brought by the same attorneys was dismissed last year against Kraft Heinz Food Co. concerning its Capri Sun juice products containing citric acid.  The more succinct “no preservatives” labeling on the pasta sauce, however, may be distinguished from “no artificial preservatives” labeling on Capri Sun where the plaintiffs’ case was doomed by problems drawing a connection between the common industry practice used to artificially manufacture citric acid and the actual practice used by Kraft.
  • On November 19, a proposed class of consumers sued Del Monte Foods Inc. in Illinois federal court over a “no preservatives” claim on its canned Farmhouse Cut Green Beans. The proposed class alleged that the salt added to the green beans causes the “no preservatives” claim to be false and misleading.
  • The complaint, filed by named plaintiff Jaymee Fleming, alleges that consumers are increasingly looking for foods produced without preservatives, and that Del Monte charges a premium for its green beans by claiming that they have no preservatives. Fleming further alleges that the green beans packaging advertises that they are “with natural sea salt,” noting that salt can be added for taste as well as preservative effect. Fleming argues that Del Monte uses the salt as a preservative because it prevents deterioration of the green beans, makes it harder for bacteria to survive in the can, prevents and slows discoloration, and helps the green beans maintain texture and flavor. Thus, Fleming argues that the claim “no preservatives” is misleading to consumers who do not want to consume any type of preservatives in their food.
  • Fleming alleges that by using the salt, Del Monte gains an advantage over other companies and is able to charge more for its products by claiming that they are made without preservatives. Fleming seeks to represent two classes of consumers who purchased green beans: one for buyers in Illinois and another for buyers in North Dakota, Rhode Island, Michigan, Virginia, Wyoming, and Delaware. Keller and Heckman will continue to monitor and report on any developments.

The Daily Intake is taking a break for the Thanksgiving holiday and will return on November 29. We wish you a wonderful Thanksgiving holiday!

Kraft Dodges Suit Over ‘No Preservatives’ Capri Sun Label (subscription to Law360 required)

  • A proposed class action, filed in the Northern District of Illinois on October 25, 2018, against Kraft Heinz Food Co. accused the company of falsely advertising its Capri Sun juice as containing “no preservatives” when in fact it contains citric acid. Tarzian et al v. Kraft Heinz Food Company, Case No. 1:18-cv-07148. The complaint alleged that the representation that Capri Sun beverages contain “No Artificial Coloring, Flavors, or Preservatives” is unfair and deceptive advertising as the beverages contain a well-known preservative, citric acid.
  • In an order filed on October 10, 2019, U.S. District Judge Charles P. Kocoras dismissed the lawsuit and found that while the plaintiffs allege practices commonly used to manufacture citric acid throughout the industry, plaintiffs failed to draw a connection between the common industry practice and the actual practice used by Kraft.
  • This dismissal follows a dismissal of a similar matter in California federal court in 2015. Osborne v. Kraft Heinz Group, Inc., Case No. 3:15-cv-02653. In that case, plaintiffs accused Kraft of mislabeling Capri Sun drinks as “all natural” when they allegedly contained synthetic ingredients, including citric acid and natural flavor. In a hearing on the defendant’s motion to dismiss, U.S. District Judge Vince Chhabria found that plaintiff did not know whether the citric acid used in Capri Sun’s drinks was natural or synthetic. The judge ultimately granted Kraft Heinz’s motion to dismiss with leave to amend the complaint. The plaintiff never filed an amended complaint.
  • On February 10, 2026, FDA announced the launch of a “comprehensive re-assessment of butylated hydroxyanisole (BHA)” to “consider whether BHA is safe under its current conditions of use in food and as a food contact substance.” On February 11, the Agency published a request for information (RFI) in the Federal Register on the current uses and safety of BHA in human food and as a food contact substance.
  • BHA was initially added to the List of Select Chemicals in the Food Supply Under FDA Review in August 2025. BHA is currently used in food and food contact applications as an antioxidant, subject to specified limitations, based on a variety of regulatory pathways including GRAS listings, food additive authorizations, and prior sanctions. These are detailed in the RFI.
  • FDA’s press release announcement linked above takes a more negative tone than the Federal Register notice. 
  • The RFI lists 12 specific areas in which FDA seeks information, generally concerning the use, use levels, dietary exposure, and safety of BHA used in food and as a food contact substance. Responses to the RFI are due by April 13, 2026.
  • 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.