Two consumers have filed a putative class action alleging that Beverage Marketing USA Inc. markets its AriZona iced green tea products as containing “ginseng for energy” despite lacking “any detectible amounts of ginseng, if indeed it contains any ginseng at all.” Niles v. Beverage Marketing USA Inc., No. 19-1902 (E.D.N.Y., filed April 2, 2019). The complaint asserts that ginseng demand “has skyrocketed while supply has dwindled, causing prices to surge to above $1,000 per pound. Ginseng is so coveted in the marketplace that certain species of ginseng have been harvested to the edge of extinction.”

The plaintiffs allege that they “retained two respected food laboratories to conduct three tests of the Product for ginsenosides,” “the main chemical constituent of ginseng,” and apparently found that “none of the three tests were able to detect any amount of ginsenosides in the Product.” Additional tests allegedly showed that AriZona’s competitors’ products did contain ginseng.

Because the products did not contain ginseng as advertised, the plaintiffs allege, “the Product has no, or, at a minimum, a much lower, value” to them. They seek an injunction, damages, class certification and attorney’s fees for allegations of fraud, negligent misrepresentation, unjust enrichment, breach of warranties and violations of the consumer-protection laws of 49 states.

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