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 rather than “d-l malic acid” was misleading. “[W]ere Defendants required to list ‘d-l malic acid’ by its specific isomer on the ingredient list? No,” the court held. “‘The statute and regulations specifically instruct that ingredients should be listed by their ‘common or usual name.’ [] And ‘[t]he provision instructing that the name ‘shall be a specific name and not a collective (generic name)’ does not override the ‘common or usual name’ requirement.'” Accordingly, the court dismissed the allegation.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.