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Plaintiffs represented by the same plaintiff's firm have filed lawsuits alleging that companies mislead consumers by labeling their foods as flavored naturally despite containing malic acid. Lepiane v. Utz Quality Foods LLC, No. 18-2659 (S.D. Cal., filed November 20, 2018); Augustine v. Talking Rain Beverage Co., No. 18-2576 (S.D. Cal., filed November 9, 2018). The plaintiffs who filed against Utz Quality Foods allege that the company's Dirty Salt & Vinegar Potato Chips are labeled as containing "no artificial flavors" but list malic acid as an ingredient. "This type of 'malic acid' is not naturally-occurring but is in fact manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts," the complaint argues. The complaint against Talking Rain Beverage Co. makes identical allegations. Both complaints allege violations of California consumer-protection statutes and seek…

A consumer has filed a putative class action alleging that Vivaloe beverages are misleadingly marketed as naturally flavored because they contain malic acid. Anderson v. Outernational Brands Inc., No. 18-2550 (S.D. Cal., filed November 6, 2018). The complaint asserts that malic acid is "an inexpensive synthetic chemical used in processed food products to make the products taste like tangy fresh fruits" that "is not naturally-occurring but is in fact manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts." The plaintiff admits that malic acid is generally recognized as safe for use as flavorings but argues that the d-malic form of malic acid "has never been extensively studied for its health effects in human beings." The plaintiff alleges violations of California consumer-protection statutes and seeks class certification, damages, attorney's fees and…

A California federal court has granted partial summary judgment in a class action alleging Keurig Dr Pepper falsely marketed Canada Dry as "Made from Real Ginger." Fitzhenry-Russell v. Keurig Dr Pepper Inc., No. 17-0564 (N.D. Cal., entered November 2, 2018). The court considered the results of multiple consumer surveys aiming to determine whether a reasonable consumer would interpret "Made from Real Ginger" as describing a product that is made from ginger root or a product that is made from ginger oleoresin, a flavoring made from ginger root. The surveys determined that some respondents were confused about the source of the ginger flavor based on Canada Dry's marketing. Finding that an issue of material fact remains, the court denied the motion for summary judgment on that claim. The court then turned to allegations about whether Dr Pepper misled consumers about the levels of ginger in the product. "The label makes no…

A consumer has filed a putative class action alleging that Mott's Applesauce and Apple Juice products are mislabeled as "natural" because they contain traces of an insecticide. Yu v. Dr Pepper Snapple Grp. Inc., No. 18-6664 (N.D. Cal., San Jose Div., filed November 1, 2018). The plaintiff alleges that reasonable consumers would not expect to find acetamiprid, a synthetic chemical, in a product labeled as "natural." The complaint echoes a similar lawsuit filed by Beyond Pesticides in May 2017; an amended complaint in that lawsuit was filed in October 2018.

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…

The U.S. Department of Justice has announced that StarKist Co. has agreed to plead guilty to charges alleging the company conspired to fix prices of packaged tuna. The company will face a fine of up to $100 million. "Our citizens' confidence in the ability to buy goods within an unbiased market is key to sustaining an efficient and fair economy,” a press release quotes a special agent as saying. “This investigation stands as a symbol of our commitment to holding corporations and senior leadership accountable and ensuring that activities such as price fixing will not be tolerated.”

The Center for Food Safety and the Center for Environmental Health have filed a lawsuit asserting that the U.S. Food and Drug Administration (FDA) has failed "to promulgate final regulations and complete actions by mandatory deadlines set by Congress in the Food Safety Modernization Act of 2011 (FSMA)." Ctr. for Food Safety v. Azar, No. 18-6299 (N.D. Cal., filed October 15, 2018). The organizations assert that FDA has failed to "classify and designate which foods that are classified as 'high-risk' for foodborne illness purposes" and "to create additional record keeping requirements for facilities handling such foods." The complaint argues that "retailers now have the available technology (e.g., blockchain) to 'identify the origin of certain produce shipments in as little as 2.2 seconds.' … In light of these advances in technology, FDA can no longer shirk the mandatory actions required of it by Congress to designate high-risk foods and issue a…

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.…

Three consumers have filed a putative class action alleging that Arizona Beverage Co.’s teas, energy drinks and fruit juices are misleadingly marketed as containing “no preservatives” despite containing citric and ascorbic acids. Kubilius v. Arizona Beverage Co., No. 18-9075 (S.D.N.Y., filed October 3, 2018). The plaintiffs assert that they paid a premium for the products believing them to be preservative-free but later discovered that the products contain citric and ascorbic acid, which allegedly “serve as preservatives by functioning as sequestrants, removing compounds and elements from their environment so as to slow the degradation of food and beverages.” The complaint also cites a declaration from a food scientist who asserts that “while citric acid and ascorbic acid can also be employed by a manufacturer that intends to impart taste, a greater quantity of these substances is required to impart taste than to preserve foods and beverages. … Even if imparting taste…

A California federal court has granted class certification to a group of consumers alleging that Chipotle Mexican Grill Inc. misrepresented its food as made without genetically modified organisms (GMOs). Schneider v. Chipotle Mexican Grill Inc., No. 16-2200 (N.D. Cal., entered September 29, 2018). Chipotle has faced a number of similar suits, but other iterations have been dismissed. The court found that the plaintiffs met each of the requirements for class certification, rejecting Chipotle's argument that each class member may have seen significantly different marketing messages. "Plaintiffs rely primarily on the advertisements and statements issued and installed in all of Chipotle's stores," the court found, noting that three advertisements supported the plaintiffs' claims. "Based on Plaintiffs’ theory that 'reasonable consumers understood Non-GMO to include meat and dairy ingredients that were not sourced from animals fed GM feed,' [] the Court finds that the representations made on these three in-store signs are…

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