A consumer has alleged that The Kroger Co. misleads with its packaging for sparkling water products sold with flavors such as "Black Cherry," "White Grape" and "Kiwi Strawberry" because the waters are purportedly flavored artificially rather than with extracts of the fruits. Gammino v. Kroger Co., No. 21-2933 (N.D. Cal., filed April 22, 2021). The complaint asserts that Kroger's "packaging, labeling, and advertising scheme for these Products is intended to give consumers the impression that they are buying a premium, all-natural product instead of a product that is artificially flavored." The plaintiff asserts that the flavoring in the beverages comes from malic acid, "a synthetic chemical manufactured in a petrochemical factory from petroleum feedstocks." The complaint lists several causes of action, including alleged violations of Ohio and California's consumer-protection statutes as well as fraud by omission, negligent misrepresentation and money had and received.
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Grand Brands Inc. allegedly markets its True Lemon powdered drink mixes as "naturally flavored" despite containing malic acid, a plaintiff alleges. Tedesco v. Grand Brands Inc., No. 20-1928 (S.D. Cal., filed September 28, 2020). The complaint asserts that Grand Brands fails to identify the type of malic acid included in its products and alleges that "[e]ven if reasonable consumers were to investigate the Defendant’s claims on the Products’ front labels by scrutinizing the ingredient statements on the back, consumers would still be unable to verify whether the Products contained artificial flavoring." The plaintiff further asserts that "analytical testing" of the products "confirmed that Defendant adds the artificial flavoring dl-malic acid to each of the Products." The eight claimed causes of action include alleged violations of California consumer-protection statutes as well as intentional and negligent misrepresentation.
A consumer has filed putative class action alleging that Vilore Foods Co. Inc. misleadingly marketed Kern’s Nectar canned beverages as natural because they contain malic acid, “a synthetic chemical that is used to make manufactured food products taste like real fruit.” Gross v. Vilore Foods Co. Inc., No. 20-0894 (S.D. Cal., filed May 13, 2020). The complaint asserts that the products violate the federal Food, Drug and Cosmetic Act because they “contain additional flavoring ingredients that simulate and reinforce the characterizing flavor,” thus requiring Vilore “to disclose those additional flavors rather than misleadingly suggest that the Product is flavored only by the labeled natural juices.” A footnote indicates that the can packaging contained the statement as of 2017 but the “manufacturer apparently has since deleted ‘100% Natural’ on the retail can labels.” The plaintiff seeks damages and injunctions prohibiting deceptive advertising and requiring corrective advertising for alleged violations of California’s…
Two consumers have filed a putative class action alleging that Tropicana misleads consumers by implying that its products are natural despite containing malic acid. Willard v. Tropicana Mfg. Co., No. 20-1501 (N.D. Ill., filed February 28, 2020). The complaint argues that Tropicana "tricks consumers" into buying products by "omitting the legally required disclosures" about artificial flavoring because the juice products list malic acid—which the plaintiff asserts is the synthetic flavoring form, dl-malic acid—as an ingredient. Tropicana "intended to give reasonable consumers like the Plaintiff the impression that the Products are pure, natural, and not artificially flavored, by packaging, labeling, and advertising the Products" with depictions of fresh fruit and names such as "Farmstand Apple," the plaintiffs assert. For alleged violations of Illinois and California consumer-protection statutes, they seek class certification, injunctions, damages and attorney's fees.
Labeling class action filings focused on purportedly misleading ingredient labels tend to come in waves, and 2019 saw a surfeit of lawsuits targeting vanilla, white chocolate and malic acid. Several plaintiffs alleged that they were misled by products listed as vanilla-flavored because, they argued, they believed they were buying products flavored with vanilla beans rather than artificial vanilla. The allegations reached yogurt, cream soda, ice cream, coconut milk and almondmilk, among other products. D-l malic acid, a synthetic flavoring, was frequently alleged to be masquerading on ingredient lists as malic acid, a naturally occurring compound. Many plaintiffs argued that they purchased products—including Brookside chocolates, Laffy Taffy, orange juice and SweeTarts—believing them to be "natural" and free of synthetic ingredients. Plaintiffs continue to file putative class actions alleging that they were misled by labels marketing products as containing "real cocoa" rather than "cocoa processed with alkali," and Oreos and Cocoa Pebbles…
A California federal court has granted summary judgment to The Hershey Co. in a lawsuit alleging that its Brookside chocolates are misleadingly labeled as made with "no artificial flavors" because they contain malic acid. Clark v. Hershey Co., No. 18-6113 (N.D. Cal., entered November 15, 2019). The court found that the named plaintiffs admitted in depositions that they did not rely on the contested label. One plaintiff "did suffer an injury as required by California law—he would not have purchased the Brookside products if he had known they contained artificial ingredients," the court noted. "However, his injury was not caused by the alleged mislabeling of the product, but rather his misunderstanding that the 'No Artificial Flavors' statement meant there were no artificial ingredients whatsoever in the product. Accordingly, regardless of defendant's alleged mislabeling, [the plaintiff] would have suffered the injury." A second and third plaintiff argued that they had relied…
Ocean Spray Cranberries Inc. has agreed to pay $5.4 million to settle claims that it misleadingly advertised its beverages as lacking artificial flavors despite containing malic avid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., filed November 8, 2019). Under the agreement, the company will stop using the phrase "no artificial flavors" on its labeling or in other marketing materials within 12 months. Class members may receive $1 per bottle up to 20 bottles, and no proof of purchase will be required.
A plaintiff has alleged that Ferrara Candy Co. misleads consumers by labeling its candies as containing no artificial flavors while including malic acid as an ingredient. Gruber v. Ferrara Candy Co., No. 19-4700 (N.D. Ill., E. Div., filed July 12, 2019). The complaint echoes other putative class actions alleging that the "malic acid" listed as an ingredient is more specifically "dl-malic acid," a synthetic food additive that can add tartness. The plaintiff alleges that he paid money for products—including Nerds, Sprees, Laffy Taffy and Everlasting Gobstoppers—that he would not have purchased if he had known that they contained artificial ingredients; further, "[w]orse than the lost money, the Plaintiff, the Class, and Sub-Class were deprived of their protected interest to choose the foods and ingredients they ingest." For an alleged violation of Illinois consumer-protection law as well as fraud, unjust enrichment and breach of express warranty, the plaintiff seeks class certification,…
A consumer has filed a putative class action alleging that Tropicana Manufacturing Co. misrepresents its orange juice as "natural" because it contains a variation of malic acid that can be used as an artificial flavoring ingredient. Johnson v. Tropicana Mfg. Co. Inc., No. 19-1164 (S.D. Cal., filed June 20, 2019). The complaint, echoing similar actions filed by the same plaintiff's firm against other companies, alleges that the ingredient "malic acid" on the product's ingredient list is not the naturally occurring l-malic acid but rather d-l malic acid, which "is manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts." The plaintiff alleges violations of California's consumer-protection laws and seeks class certification, restitution, damages, corrective advertising and attorney's fees.
A California federal court has dismissed part of a putative class action alleging Bai Brands misleads consumers as to its ingredients because it does not label "malic acid" as "d-l malic acid." Branca v. Bai Brands, No. 18-0757 (S.D. Cal., entered March 7, 2019). The court first refused to dismiss the plaintiff's allegation that Bai beverages contain the artificial form of malic acid, finding that while his "assumption as to the type of malic acid contained in Defendants' Products ultimately may be incorrect, at the pleading stage, this Court 'does not operate as a fact-finder,' but, instead, must 'presume all facts plead as true.'" The court also declined to "make a factual determination at this time as to whether malic acid is an artificial flavor" and denied Bai's motion to dismiss those claims. The court then turned to the allegation that the use of "malic acid" on the ingredients list…
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