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A California federal court has refused to dismiss a putative class action alleging Ocean Spray Cranberries Inc. misled consumers by marketing its products as free from artificial flavors despite containing malic acid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., entered October 30, 2018). Ocean Spray moved to dismiss the allegations, arguing that "malic and fumaric acids do not function as flavors in their juice products but instead are acidulants used to control the pH and titratable acid levels in their juices." Ocean Spray presented testimony from its vice president of research, development, quality and engineering, who asserted that changing the amount of malic and fumaric acids in the product would not change the flavor but may "create a perceptible difference in mouth feel of the product." The plaintiff's expert, a food scientist, argued that the "small quantity of synthetic malic acid in the Cran-Apple juice drink" would…

A consumer has alleged that Apple & Eve markets its Switch Sparkling Juices as containing no added sugar or preservatives despite containing citric and ascorbic acids and having a "high calorie count when compared to competitors' products that do not have the 'No Sugar Added' claim." Reaves v. Apple & Eve LLC, No. 18-5728 (E.D.N.Y., filed October 12, 2018). The complaint asserts that consumers believe the juices to be "a low-calorie product" because of the "no sugar added" marketing message. "Consumers associate claims about the absence of sugar with lower calorie counts when there is no disclaimer stating otherwise," the complaint alleges. "The [U.S. Food and Drug Administration] has reached the same conclusion: 'Consumers may reasonably be expected to regard terms that represent that the food contains no sugars or sweeteners e.g., 'sugar free,' or 'no sugar,' as indicating a product which is low in calories or significantly reduced in…

Jamba Inc. and Jamba Juice Co. face a putative class action alleging the company's advertising deceives and misleads consumers about the nutritional value and ingredients of its smoothie beverages. Turner v. Jamba, Inc., No. 18-5168 (N.D. Cal., filed August 23, 2018). The plaintiffs allege that Jamba's smoothies contain more sugars than typical sodas or soft drinks rather than being “simple and nutritionally on par with eating whole fruits and vegetables." In addition, the complaint asserts that the smoothies contain concentrated fruit juice blends—predominantly apple, pear and grape—rather than “whole fruits and veggies.” The plaintiffs also allege that the sherbets and frozen yogurts used in the smoothie blends contain "numerous additives," including sugar, corn syrup, caramel coloring, carrageenan, citric acid, guar gum, lactic acid, locust bean gum and pectin. Claiming violations of California’s and New York’s consumer-protection statutes, the plaintiffs seek class certification, declaratory judgment, injunctive relief, damages and attorney’s fees.

A New York federal court has dismissed some allegations in a lawsuit alleging Whole Foods Market Group Inc. and Freshbev LLC mislabeled juice products but will allow three claims to proceed. Campbell v. Freshbev LLC, No. 16-7119 (E.D.N.Y., entered July 2, 2018). The plaintiff alleged that the companies mislabeled the juices as unpasteurized, cold-pressed and fresh and that Ripe Craft Juice 12.2 Northeast Blend Cranberry Apple contained more apple juice than cranberry in the blend. The court dismissed the allegation that the "cold-pressed" labels were misleading because the juices are subjected to high-pressure processing, finding that a "reasonable consumer would not mistake the cold-pressed claim to be a claim that pressure was never applied to the juice products." The court permitted three state-law claims related to the "fresh" labels, the "unpasteurized" label on cranberry juice, and the "Cranberry Apple" juice ingredients to continue but dismissed claims for injunctive relief and fraud.

A federal court has denied a motion to reconsider a denial of class certification in a lawsuit alleging that Tropicana Products Inc. mislabeled its orange juice as “natural.” In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered May 24, 2018). The plaintiffs argued that the court misconstrued its theory of liability, gave more weight to the defendant’s expert opinions, overlooked evidence of class-wide injury and erred in its ascertainability analysis. The court ruled that because the plaintiffs “exhaustively alleged” that the juice contained added flavoring, whether the product conforms to the standard of identity for pasteurized orange juice "lies at the heart of Plaintiff’s theory of liability as articulated by Plaintiffs’ own words.” Finding the claims unsupported by the pleadings, the court found no cause for reconsideration. The court also pointed to an expert opinion showing variation in the reasoning behind consumer decisions to buy the…

A New York federal court has dismissed most of the claims in a cold-pressed juice putative class action but will allow to proceed allegations related to heat-processing of citrus juices. Davis v. Hain Celestial Grp., Inc., No. 17-5191 (E.D.N.Y., entered April 3, 2018). The court dismissed the complaint’s allegations involving high-pressure processing, finding that “the label taken as a whole makes clear that the juice was subjected to pressure for food safety purposes.” Even if consumers “are not generally aware of non-thermal processing methods, the Cold-Pressed Line labels clearly indicate that such methods exist,” the court held. “'Cold pressed' does not cease to be a truthful moniker for the juice simply because there were subsequent steps in the juice’s production process.” The court declined to dismiss the plaintiff’s allegations that all citrus juices—including lemon juice, which appears in all of the contested products—must be heat-processed. If true, the court found, the…

A New Jersey federal court has denied class certification to a group of consumers alleging that Tropicana Pure Premium orange juice was mislabeled and misbranded because the maker adds natural flavoring to the product in violation of the U.S. Food and Drug Administration's standard of identity for pasteurized orange juice. In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered January 22, 2018). The court ruled that the plaintiffs’ unjust enrichment, express warranty and New Jersey Consumer Fraud Act claims required individualized proof; thus, individual issues predominated over those of the class. In addition, the plaintiffs were unable to demonstrate that the proposed class was ascertainable—in particular, the court found, it was unclear whether any of the “dozens, if not hundreds of retailers” could confirm with certainty whether they possessed consumer data for the class period. If a consumer purchased the juice from a retailer that…

A consumer has filed a projected class action alleging Ocean Spray Cranberries’ CranGrape and CranApple juice products contain artificial flavorings despite bearing “No High Fructose Corn Syrup, Artificial Colors or Flavors" labels. Hilsley v. Ocean Spray Cranberries, Inc., No. 17-2335 (S.D. Cal., removed to federal court November 16, 2017). Originally filed in San Diego County, the complaint alleges that CranApple contains synthetic dl-malic acid made from petrochemicals but lists “malic acid”—a generic term that can be used to describe a "naturally occurring compound"—on the label. The plaintiff further alleges that CranGrape contains fumaric acid, also synthesized from petrochemicals, and that both fumaric and malic acid are used to enhance flavor. Claiming violations of California’s consumer-protection statutes as well as breach of warranties, the plaintiff seeks class certification, disgorgement, restitution, punitive damages, injunctive relief, corrective advertising and attorney’s fees.

Forager Project faces a putative class action alleging that its "cold-pressed" juices undergo a second, high-pressure processing, allegedly amounting to misrepresentation on the product labeling. Berger v. Forager Project, LLC, No. 17-6302 (E.D.N.Y., filed October 28, 2017) The plaintiff asserts that after the juices are cold-pressed and bottled, Forager subjects the bottles to high-pressure treatment that reduces “the biological, enzymatic and bacterial activity which existed after cold-pressing to an extent that is material to reasonable consumers.” In addition, the plaintiff alleges that Forager does not disclose this second step on its labeling, misleading consumers who want cold-pressed juice because of its “greater integrity in composition than if it were made through a centrifugal machine.” The complaint further argues that the name “Forager Project” contributes to consumer deception because “[f]oraging has traditionally referred to the gathering of food from the natural, undisturbed environment.” Claiming violations of New York consumer-protection law, false advertising,…

Green Crush, a retailer selling juice, smoothie and aguas frescas beverages, has filed a lawsuit alleging that a former Green Crush manager and a former contractor engaged in corporate espionage, asserting that they used the chain’s proprietary information and infringed its trademarks and trade dress to start a competing company. Green Crush, LLC v. Paradise Splash 1, Inc., No. 17-1856 (C.D. Cal., filed October 23, 2017). The complaint alleges that the manager frequently asked senior Green Crush employees about “distribution operations, specific equipment, detailed drink ingredients, the design, placement, setting and layout of drink containers and cups, and the process and recipes used” before leaving to start a competing juice store. Further, Green Crush argues, the manager and contractor solicited Green Crush employees to work for them; allegedly, some of those employees asked “if the store under construction was a [Green Crush] store because it looked just like one.” Seeking…

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