Plaintiff’s Firm Files Malic Acid, Slack-Fill Lawsuits

Two consumers represented by the same plaintiff’s attorneys have filed lawsuits alleging food companies misleadingly label their products as natural because they contain malic acid. Morris v. Mott’s LLP, No. 18-1799 (C.D. Cal., filed October 4, 2018); Clark v. Hershey Co., No. 18-6113 (N.D. Cal., filed October 4, 2018). The plaintiffs assert that Mott’s Assorted Fruit Flavored Snacks and Brookside Dark Chocolate Acai & Blueberry are marketed as free from preservatives and artificial flavorings but contain d-l malic acid, “an undisclosed artificial flavor made from petrochemicals.” Both complaints note that “the natural and unnatural forms of malic acid are considered ‘GRAS’ (generally recognized as safe) for use as flavorings in foods marketed to adults,” but “the d-malic acid form, however, has never been extensively studied for its health effects in human beings.” The plaintiffs each allege violations of California’s consumer-protection statutes and seek class certification, injunctions, damages and attorney’s fees.

Represented by the same plaintiff’s firm, the plaintiff in the lawsuit targeting The Hershey Co. also filed a putative class action alleging Justin’s Nut Butter LLC’s packages of Peanut Butter Cups contain excessive slack fill. Clark v. Justin’s Nut Butter LLC, No. 18-6193 (N.D. Cal., filed October 10, 2018). The plaintiff asserts that “[n]early 40% of the interior of the Product’s container is comprised of empty space, or non-functional slack-fill.” The complaint cites a study by Brian Wansink, the Cornell Food and Brand Lab director found to have committed academic misconduct in his research, to argue that “consumers are apt to choose the larger box because they think it’s a better value.” The plaintiff seeks class certification, injunctive relief, damages and attorney’s fees for alleged violations of California’s consumer-protection statutes.