A New York woman has brought a putative class action against Nestlé USA Inc. alleging the company makes misleading claims about the nutrition content of its Ovaltine flavored drink mix products. McMenamy v. Nestlé USA Inc., No. 22-1053 (N.D.N.Y., filed October 11, 2022). The plaintiff took issue with labeling including “A Good Source of 12 Vitamins & Minerals” and “No Artificials.” She said that under state and federal regulations, the former phrase is a nutrient content claim, meaning that the product should provide between 10 to 19 percent of the recommended daily intake or recommended daily value of no less than 12 vitamins or minerals. She said the product is not a good source of 12 vitamins and minerals because the consumer is required to mix the product with a cup of low-fat Vitamin A & D milk. “That the Product is not a good source of 12 vitamins and…
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A group of consumers have filed a proposed class action against a North Carolina kombucha company, alleging the company misleads consumers as to the alcohol content of its beverages. Burke v. Tribucha, Inc., No. 22-0406 (E.D.N.C., filed October 6, 2022). Kombucha is a fermented tea drink that, when made without pasteurization, can develop a high amount of alcohol, their complaint argues. The plaintiffs, who live in Florida, Illinois, Virginia and Tennessee, assert that Tribucha failed to disclose that its raw kombucha is an alcohol beverage, instead labeling the products as containing only trace amounts of alcohol. They allege that the beverages contain more than twice the alcohol allowed for non-alcohol beverages. “Defendant’s disclaimer that the Products ‘contain a trace amount of alcohol,’ is woefully inadequate as it does not contain the mandated Surgeon General warning, is not prominently featured on the product, and is still sold to consumers under 21…
A plaintiff has filed a putative class action alleging that Whole Foods Market Group Inc. misleads consumers by selling sparkling mineral water in a lemon raspberry flavor without an "appreciable amount" of lemons and raspberries. Kelly v. Whole Foods Mkt. Grp. Inc., No. 21-3124 (S.D.N.Y., filed April 11, 2021). The label of the water contains images of lemons and raspberries, the complaint asserts, and consumers "will expect the presence of a non-de minimis amount of lemon and raspberry ingredients, based on the pictures of these fruits." The plaintiff argues that the ingredient list, which shows the contents as "carbonated mineral water, organic natural flavors (raspberry, lemon)," fails to inform consumers the flavoring "mainly consists of flavors from fruits other than lemons and raspberries." "Because lemon oil and raspberry oil or raspberry extract are not separately identified ingredients, it means that any real lemon or raspberry flavoring is at most a de minimis…
Three consumers have filed a putative class action alleging Kombucha 221 B.C. sells kombucha that contains "more than twice the allowed alcohol" for a nonalcohol beverage. Brothers v. Mad at S.A.D. LLC, No. 21-60542 (S.D. Fla., filed March 9, 2021). The plaintiffs, who allege they purchased the kombucha for consumption at work, argue that the kombucha beverages "are sold to unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcoholic consumption may pose a grave and immediate safety risk." The complaint asserts that the nature of kombucha allows the product to continue fermenting, growing to a higher percentage of alcohol by volume by the time the product is consumed. "While Plaintiffs do not know whether BC Kombucha is below 0.5 alcohol by volume at the moment it leaves Defendant’s distribution center, what is clear is that the beverages are significantly above…
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…
A lawsuit challenging the ingredients in LaCroix sparkling water has been dismissed with prejudice by the plaintiffs. Rice v. Nat'l Beverage Corp., No. 18-7151 (N.D. Ill., E. Div., entered February 18, 2020). National Beverage Corp. reportedly shared a letter with the media about the voluntary dismissal, stating that a laboratory cited in the complaint confirmed that it had not, as alleged, determined that the ingredients in LaCroix were not natural. "That laboratory has since confirmed in writing and separately under oath that its testing could not, and did not, determine whether the ingredients were 'synthetic' and made no finding as to the source of the ingredients it identified." The letter reportedly also asserts that the plaintiff was provided results from a different laboratory, "which confirmed that LaCroix's flavor ingredients are 100% natural and free of any 'synthetic' sources."
A California appeals court has determined that the "no sugar added" phrasing on Califia Farms' Cuties tangerine juice does not imply to consumers that competitors add sugar to their products. Shaeffer v. Califia Farms LLC, No. B291085 (Cal. App. Ct., entered February 6, 2020). The lower court dismissed the complaint, ruling that the "no sugar added" representation was truthful. The appeals court considered "statements a business affirmatively and truthfully makes about its product and which do not on their face mention or otherwise reference its competing products at all." The court found that a "statement may be 'fraudulent' (and hence actionable) if it is 'deceptive and misleading in its implications,'" but declined to hold as actionable truthful statements about a company's own product when the argument is that a reasonable consumer would "(1) likely to infer from such a statement that the very same statement is untrue as to comparable,…
A consumer has filed a putative class action alleging Tipp Distributors Inc. mislabels its Steaz iced tea as "lightly sweetened" despite containing "objectively high amounts of sugar, as added sugar." Taylor v. Tipp Distrib. Inc., No. 20-0712 (E.D.N.Y., filed February 9, 2020). Consumers paid a premium for Steaz believing it to contain less sugar than its competitors, the complaint asserts, but it contains 20 grams of added sugar, 40% of the recommended daily intake. "By consuming the Products and the 40% DV of added sugar, the average person who wishes to follow the DGA must consume no more than 30 grams of sugar across 1,920 calories (2,000 calories – 80 calories)," the plaintiff argues. "It will be difficult to impossible for the average, reasonable consumer to not consume more than 30 grams of sugar in everything else they eat or drink because many foods and beverages have added sugars, albeit…
The University of Connecticut's Rudd Center for Food Policy & Obesity has released a report on the state of nutrition and marketing for beverages targeted to children. The researchers identified "common practices that may confuse parents about the ingredients and healthfulness of sweetened children's drinks," including the "widespread use of low-calorie sweeteners," the "sugar content and calories" and the serving sizes of "100% juice products" that "contained more than the recommended maximum daily amount of juice for toddlers." The report recommends that "manufacturers should develop and market unsweetened plain waters for children," that media companies with children's programming "should implement nutrition standards that comply with expert recommendations that can be advertised to children in their media" and that retailers should "clearly label children's drinks that contain added sweeteners."
A New Jersey federal court has denied class certification to a plaintiff challenging Tropicana's marketing representations of its juice as "pure" and "natural." In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered June 19, 2019). The court first denied certification for a New York class because the plaintiff only purchased Tropicana in California, then it turned to the requirement of predominance. "Plaintiff has not demonstrated that a uniform misrepresentation was made to the class sufficient to satisfy predominance as to the '100% pure and natural orange juice,' '100% pure,' '100% natural,' '100% juice' 'fresh,' 'grove to glass,' 'squeezed from fresh oranges,' 'straight-from-the-orange,' and Orange/Straw labels," the court found. "[T]he Court would be required to perform an individualized inquiry into each product purchased to determine what combinations of labels were visible before determining whether that combination is deceiving to a reasonable consumer. These variations are the…
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