Search results for: "citric acid"

  • On April 28, 2023, the U.S. Court of Appeals for the Ninth Circuit upheld a district court’s decision to dismiss a lawsuit against Kroger which alleged that the company falsely and misleadingly labeled its spreadable fruit products as “Just Fruit” because they contained ingredients which were not “fruit” in the form found in nature. However, all of the ingredients in the products (fruit syrup, pectin, calcium citrate, apple juice concentrate, and citric acid), were in fact derived from fruit. 
  • The Court held that the definition of “fruit” must be considered in the context of the product (a spreadable fruit) and that spreadable fruit products “necessarily contain ingredients other than the crushed ‘reproductive bod[ies] of a seed plant.’” (Merriam Webster Dictionary definition of a “fruit”). And, since each ingredient in the product was extracted and isolated from fruit, the claim was neither objectively false nor misleading under the reasonable consumer test (i.e., the label was not likely to mislead a significant portion of reasonable grocery shoppers).
  • The Court also rejected the argument that the descriptor “Just” (in “Just Fruit”) indicated an absence of added sweeteners. The statement said nothing about sugar content and a reasonable consumer would not think otherwise, especially given that most spreadable fruit products contain added sugars. 
  • We will continue to monitor and report on food litigation developments.
  • In November 2022, B&G Foods Inc.’s Polaner “All Fruit” jelly spreads were challenged by a proposed class action suit in New York federal court for allegedly misleading consumers into believing the products are sweetened only with fruit juice when they also contain citric acid and natural flavors. See Indiviglio v. B&G Foods Inc., case number 22-cv-09545, in the U.S. District Court for the Southern District of New York. The original compliant argued that the product label claims that the jellies are “Sweetened Only With Fruit Juice” and only contain “All Fruit” are misleading because the ingredient lists indicate the presence of not only juice concentrates and fruit pectin which meet the definition of fruit, but also citric acid and natural flavors, which allegedly do not qualify as fruit ingredients.
  • Plaintiff maintains that “fruit” means “the seed-associated fleshy structures or produce of plants that are sweet or sour and edible in the raw state.” Although citric acid is an organic acid naturally occurring in various fruits, plaintiff argues that it is industrially produced via fermentation from a fungus when used as an ingredient in other foods. Further, plaintiff argues that natural flavors are defined as the “essential oil” or extractive with “flavoring constituents derived from” fruits and other plant material, whose significant function in food is for flavoring, rather than nutritional, purposes. Due to the inclusion of citric acid and natural flavors, plaintiff alleges that the products’ labels are false and misleading, contending that consumers value fruit ingredients for generally being less processed, more natural and healthier than non-fruit ingredients and pay a premium price for products labeled as containing only fruit.
  • On March 20, B&G Foods Inc. filed a motion to dismiss, arguing that the fruit label is neither false or misleading and that the plaintiff makes generalized allegations about the food industry regarding the sources and uses of citric acid and natural flavor ingredients in foods. On Monday, April 3, plaintiff filed a memorandum to court requesting the case be preserved, arguing that the “all fruit” claim is synonymous with “nothing but, or only” fruit and maintaining that citric acid and natural flavors do not meet the a typical consumer’s understanding of the definition of “fruit.”
  • Keller and Heckman will continue to monitor consumer class actions regarding challenges to food label claims.
  • On January 16, consumer plaintiffs filed a class action lawsuit against The Coca-Cola Company alleging that their Fresca Sparkling Soda Water misleads consumers to believe the beverages contain no added sweeteners, even though they contain aspartame and citric acid (subscription to Law360 required). In the complaint, named plaintiffs Mark Letoski and Roger Fox assert that, per the FDA, consumers understand the terms “sparkling water” or “soda water” to mean water with added carbonation but without sweeteners or flavorings. Thus, they argue that the presence of any food additives should be prominently disclosed on the principal display panel (PDP).
  • Notably, the product identity statements (PIS) do appear to declare the presence of flavorings. For example, two of the PISs are “Sparkling Soda Water Black Cherry Citrus Flavor With Other Natural & Artificial Flavors” and “Sparkling Soda Water Grapefruit Citrus Flavor With Other Natural Flavors.” But the plaintiffs argue the PIS should also identify the presence of sweeteners (e.g., “Artificially Sweetened Sparkling Soda Water”).
  • Further, the plaintiffs argue that the images of grapefruits and cherries on the product label lead consumers to believe that the beverages contain “non-negligible amounts” of real fruit ingredients, despite the characterizing flavor statements that are declared on the PDP (e.g., citrus flavor with other natural flavor & artificial flavors). The plaintiffs concede that although the products do contain grapefruit juice concentrate as an ingredient, the label is misleading because citric acid is present at a greater amount.
  • The case is Letoski et al v. The Coca-Cola Company, 1:23-cv-00238. The lawsuit alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, the Vermont Consumer Fraud Act, several state consumer fraud acts, plus breaches of express warranty, implied warranty of merchantability and the Magnuson Moss Warranty Act, and negligent misrepresentation, fraud, and unjust enrichment.
  • Keller and Heckman will continue to monitor this case and report on any notable developments.

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.
  • The United States District Court of the Eastern District of New York received a class action complaint on May 31, 2022 regarding the usage of the term “natural” in Nordic Naturals’ dietary supplement products. Plaintiffs allege that use of “natural” for said products constitutes false advertising as the products contain synthetic ingredients, including but not limited to gelatin, soy lecithin, riboflavin, citric acid, and more. Plaintiffs argue that knowledge of the synthetic nature of the ingredients would require “a scientific investigation” beyond the knowledge of the reasonable consumer and that the average consumer would have a reasonable expectation that the dietary supplement products contained only natural ingredients.
  • “Natural” claims in food and dietary supplement labeling have often been a target for class action litigation. Our site has previously covered “natural” cases involving the term’s usage to describe lunch meats and bacon, apple sauce, vanilla flavoring in soy milk, and other products.
  • While FDA has never formally defined “natural” by regulation, the Agency has traditionally taken the position that term means that “nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food.” In response to several citizen petitions, as well as references in various Federal Court decisions requesting that the agency provide more formal guidance in this regard, FDA requested comments on the use of the term “natural” on food labeling in 2015.  The Agency received over 7,000 comments but has taken no formal action since the close of the comment period in May of 2016. Keller and Heckman will continue to monitor this case, as well as further action by FDA for any 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.
  • 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.
  • On June 23, 2020, a plaintiff filed a complaint against Pret A Manger in the United States District Court Southern District of New York.  The lawsuit seeks to remedy the “deceptive and misleading business practices” of Pret A Manger with respect to the marketing and sales of its “natural” food products throughout the State of New York and throughout the country.
  • In the complaint, plaintiff states that Pret A Manger manufactures, sells, and distributes its products using a marketing and advertising campaign centered around claims that appeal to health-conscious consumers (i.e., that its products are “natural”).  The lawsuit states that through its retail establishments, Pret A Manger includes prominent signage with statements, like “freshly prepared, good, natural food,” “natural food,” and “lovingly handmade throughout the day (with amazing, natural ingredients).” However, plaintiff alleges that Pret A Manger’s advertising and marketing campaign is false, deceptive, and misleading because the products contain soya, a genetically modified organism, as well as numerous other synthetic ingredients, including maltodextrin, citric acid, lactic acid, malic acid, diacetyl tartaric acid esters of mono- and diglycerides, mono- and diglycerides of fatty acids, and ascorbic acid.
  • By way of background, in March 2019, a different plaintiff filed a lawsuit against Pret A Manger claiming its marketing campaign is deceptive because its products contain soya as well as glyphosate, a synthetic biocide.  Eventually, the plaintiff voluntarily dismissed the March 2019 lawsuit.  We will continue to monitor any developments in regard to the June 23, 2020 complaint.
  • On February 11, 2020, Christopher Silva, a New York resident, filed a proposed class action lawsuit against Hornell Brewing Co. Inc., Arizona Beverages USA LLC, Beverage Marketing USA, Inc., and Arizona Beverage Co. (“Defendants”) over defendants’ “all natural” gummy snacks.
  • The plaintiff claims that defendants’ advertising and marketing campaign is false, deceptive, and misleading because the gummies contain several synthetic ingredients, such as ascorbic acid, citric acid, gelatin, dextrose, glucose syrup, and modified food starch.  Silva seeks to represent a New York class and individual classes for all 49 other states.
  • In the complaint, Silva cited to the United States Department of Agriculture’s Draft Guidance Decision Tree for Classification of Materials as Synthetic or Nonsynthetic (natural).  Per that guidance, a substance is natural – as opposed to synthetic – if (a) it is manufactured, produced, or extracted from a natural source (i.e. naturally occurring mineral or biological matter); (b) it has not undergone a chemical change (i.e. a process whereby a substance is transformed into one or more other distinct substances) so that it is chemically or structurally different than how it naturally occurs in the source material; or (c) the chemical change was created by a naturally occurring biological process such as composting, fermentation, or enzymatic digestion or by heating or burning biological matter.
  • Silva noted that while the synthetic ingredients are all listed on the back of the package, reasonable consumers are not expected or required to review the ingredients list on the back in order to confirm or debunk defendants’ prominent front-of-the-product claims.  The package in question includes the phrase “All Natural” on the packaging behind the words, “Arizona” and “fruit snacks.” We will continue to monitor any developments.

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.