Search results for: malic acid

 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.

 

Costco Artificial Flavoring Is A Lie, Court Told (Law360 Subscription Required)

  • A federal class action complaint, filed September 3, 2021, alleges the words “black raspberry flavor” and pictures of black raspberries on the label, together with the dark red color of the beverage render the omission of “artificially flavored” deceptive on Costco’s label for Kirkland brand carbonated, flavored water drink.  In a January 24, 2022 motion to dismiss, Costco disputes the plaintiff’s allegations of noncompliance with FDA’s labeling regulations, highlights that the product does not contain any express “no artificial” claims, and argues that any reasonable consumer understands “black raspberry” as a flavor designator, not an ingredient claim, and could not make any reasonable assumptions based on the use of coloring about the amount of any ingredient that is present in the product.
  • In a memorandum filed on February 23, 2022, the plaintiff opposes Costco’s motion to dismiss by reasserting allegations of noncompliance with food labeling laws and arguing that where the use of natural flavors in such a product is plausible, as evidenced by other products on the market, it is not unreasonable for consumers to assume that the Kirkland carbonated, flavored water would not contain artificial flavoring and would have more black raspberry ingredients than it does.  The memorandum also notes that Costco did not present evidence that “malic acid,” an ingredient which the plaintiff’s testing demonstrates is D-malic acid, a non-naturally occurring isomer, is used only to control pH, rather than to mimic the tart taste of raspberries.  The plaintiff additionally distinguishes “raspberry flavor” from “raspberry flavored,” arguing that the former phrase was used on the label for the purpose of misleading consumers with respect to the artificial nature of the flavor ingredients.
  • While no extrinsic evidence of consumer deception has been offered, this is not necessarily required to survive a motion to dismiss under a permissive plausibility standard.  Keller and Heckman will continue to monitor any developments in this litigation.
  • On Friday, June 4, U.S. District Judge James Lorenz denied preliminary approval (subscription to Law360 required) of a General Mills class action settlement due to signs of collusion. The California federal judge said the deal raises questions about whether class counsel really had the consumers’ interests in mind, as the deal offers no money to the class, but a large payout to the attorneys.
  • In December 2017, consumers filed a class action lawsuit against General Mills, claiming that its fruit-flavored snacks (Fruit Roll-Ups) were intentionally mislabeled as all natural. The suit alleged that the products were advertised as “naturally flavored” and containing “no artificial flavors” but contained malic acid.
  • General Mills and the class of consumers recently reached a settlement agreement which would require minimal label changes to the product’s packaging. Under the proposal, General Mills would display an asterisk next to the “no artificial flavors” claim, with the asterisk directing consumers to the company’s website where it would be mentioned that the product may “contain synthetic malic acid or other acidulants” and that “malic acid is intended for use not as a flavor or to impart the characterizing flavor of these products, but is a substance the FDA approves for multiple uses including a flavor enhancer, a flavoring agent or adjuvant, or as a pH control agent.” The settlement would provide no money to class members and instead provide a $725,000 payout to the attorneys for fees and costs. Such an agreement strays far from the class’s original request for monetary relief. The court ultimately found that the settlement falls short of a fair and adequate settlement to resolve the class claims and denied the proposed deal.
  • 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.

Chef Denied Class Cert. In Pringles Artificial Flavoring Row (subscription to Law360 required)

  • In the past five years or so consumers have shown increased concern about perceived health issues with so-called “artificial” ingredients.  Whether or not ingredients are “artificial” is, therefore, a hotly debated issue at the center of many false advertising lawsuits.
  • On December 5, 2019, a New York federal judge denied class certification to a plaintiff seeking to represent all NY buyers of Pringles Salt and Vinegar chips containing an allegedly false ‘no artificial flavors’ claim because “unwieldy individual issues” predominate over common questions.  As a main issue, the court would have difficulty determining who is a class member because only 4 out of 20 of the Pringles labels contained the ‘no artificial flavors’ claim at issue.  Additionally, there are concerns that the plaintiff may not adequately represent the typical Pringles buyer because he is a chef who may have a unique interest in purchasing foods without artificial ingredients and for whom “price is no object.”  The judge also questioned whether the lawsuit was truly sought for the plaintiff’s own benefit as opposed to the benefit of the lawyers where the plaintiff was alerted to the artificial flavors by his wife, who is an attorney with one of the firms seeking to represent the class.
  • The denial of class certification in this lawsuit does not settle the merits of the false advertising claims against Kellogg Co. for Pringles made with the alleged artificial flavors, sodium diacetate and malic acid.  We have also reported on a different putative class action lawsuit over ‘natural’ claims where malic acid was alleged to be a synthetic flavor.  Lawsuits over the alleged artificial nature of malic acid and similar ingredients will not likely slow down until FDA regulates the term “natural,” an action which we have reported has been in the works for quite some time with no certain deadline.

 

  • A consumer class action lawsuit, first filed in California state court on September 19, 2017 alleged that Ocean Spray Cranberries Inc.’s “CranGrape” and “CranApple” beverages were false and misleading under California and federal law. Specifically, the complaint alleged that the “CranApple” drink includes DL-malic acid derived from petrochemicals to achieve its apple flavor while the CranGrape drink includes a fumaric acid ingredient synthesized from petrochemical feedstocks to achieve its grape flavor. Despite those artificial ingredients, the complaint alleged that those beverage labels claimed that they contained “No Artificial Flavors.”
  • The issue at the center of the lawsuit was whether those compounds function and qualify as artificial flavors in the juice products. In prior court hearings, Ocean Spray argued that the malic and fumaric acid in their juice products were used to control pH and acidity levels and were not present to flavor the products. The plaintiff argued that malic acid can be used as a flavor or flavor enhancer, and the low level of synthetic malic acid and fumaric acid in the drink would function as a flavor.
  • Pending approval by U.S. District Judge Gonzalo Curiel, a proposed settlement filed on November 8, 2019 would require Ocean Spray to pay $5.4 million into a settlement fund. In addition, Ocean Spray agreed to cease manufacturing its “CranGrape” and “CranApple” products with labels that contain the claim “no artificial flavors” within 12 months after the final approval effective date.