Tag Archives kombucha

A consumer has filed a putative class action alleging that Brew Dr. Kombucha LLC markets its products as containing "billions" of "live and active cultures" or "beneficial bacteria, yeasts and organic acids" despite containing "only 50,000" colony forming units. Amos v. Brew Dr. Kombucha LLC, No. 19-1663 (D. Ore., Portland Div., filed October 16, 2019). "Because consumers specifically purchase kombucha products because of their probiotic content, and rely on the amount of probiotics stated on the product labeling when choosing what type and brand of kombucha drink product to purchase, Defendant’s product labels and advertisements were false, misleading, and reasonably likely to deceive the public," the plaintiff argues. For allegations of breach of warranties and unjust enrichment, the plaintiff seeks class certification and damages.

A consumer has filed a putative class action alleging that O Organics and Lucerne Foods Inc. "greatly understate" the alcohol and sugar content of their kombucha. Freedline v. O Organics LLC, No. 19-1945 (N.D. Cal., filed April 10, 2019). The plaintiff argues that "the beverages contain more than three to five times the alcohol allowed for non-alcoholic beverages" and "are sold to unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcohol consumption may pose a grave and immediate safety risk." The complaint cites lab testing purportedly showing levels of alcohol by volume between 1.63 and 2.63 percent. The plaintiff alleges violations of California's consumer-protection statutes as well as breach of warranties, fraud, unjust enrichment and negligent misrepresentation, and he seeks class certification, damages, restitution and attorney's fees.

Whole Foods Market Inc. and Health-Ade LLC have agreed to pay $4 million to settle allegations that Health-Ade labels its kombucha as non-alcoholic despite containing "more alcohol than permitted for non-alcoholic beverages." Bayol v. Health-Ade LLC, No. 18-1462 (N.D. Cal., filed March 15, 2019). Under the agreement, class members can receive $4 for each bottle of kombucha purchased, with a limit of 20 claims with proof of purchase and 10 without. Health-Ade also agreed to change its formula to better control the variability of alcohol and sugar content and update its labels to notify purchasers that "[d]ue to natural fermentation, there may be trace amounts of alcohol and small pieces of culture."

Two California courts have dismissed lawsuits brought by a competitor alleging kombucha companies misrepresented the amount of sugar and alcohol in their products. Tortilla Factory LLC v. Rowdy Mermaid Kombucha LLC, No. 18-2984 (C.D. Cal., entered September 11, 2018); Tortilla Factory LLC v. Better Booch LLC, No. 18-2980 (C.D. Cal., entered September 13, 2018). In April 2018, Tortilla Factory filed several lawsuits alleging that a number of its competitors, including Rowdy Mermaid Kombucha and Better Booch, misrepresent the alcohol and sugar content in their beverages in violation of federal law. The court in Rowdy Mermaid found that Tortilla Factory did not suffer an injury from Rowdy Mermaid's conduct; while the plaintiff argued that the companies are "vying for the same dollars from the same consumers," it failed to argue that "the two companies' products are sold in the same stores, through the same channels, or even in the same geographic…

A California federal court has denied a motion to dismiss a putative class action alleging deceptive labeling and advertising of Yogi Green Tea Kombucha, ruling that whether a reasonable consumer believes that kombucha should contain live organisms is a question of fact. Cohen v. East West Tea Co. LLC, No. 17-2339 (S.D. Cal., entered August 2, 2018). The plaintiff alleged that East West Tea falsely labels and advertises its product as kombucha because it purportedly contains no “live organisms." The court found that the parties' definitions of “kombucha” differ and that a reasonable consumer may or may not expect to find live organisms in kombucha. Whether a practice is deceptive is not a matter to be resolved by a motion to dismiss, the court held, noting “mixed case law on whether ambiguity regarding the definition of a word merits a motion to dismiss.”

The maker of Kombucha Dog beverages has filed lawsuits against Trader Joe’s Co. and other kombucha producers alleging the companies misrepresent the amount of alcohol and sugar in their products and violate federal and state laws regulating the sale of alcohol beverages. Tortilla Factory, LLC v. Trader Joe’s Co., No. 18-2977; Tortilla Factory, LLC v. Better Booch, LLC, No. 18-2980; Tortilla Factory, LLC v. Makana Beverages, Inc., No. 18-2981; and Tortilla Factory, LLC v. Rowdy Mermaid Kombucha, LLC, No. 18-2984 (C.D. Cal., filed April 9, 2018). According to Tortilla Factory's complaints, kombucha's post-bottling fermentation can cause it to develop an alcohol content of 0.5 percent or more by volume, subjecting it to regulation under federal law, including Alcohol and Tobacco Tax and Trade Bureau regulations that govern production, labeling and distribution. The complaints assert that independent testing revealed that the defendants' products contain between 1.0 and 2.7 percent alcohol but…

A consumer has filed a putative class action alleging Health-Ade LLC's kombucha contains four to five times the amount of sugar listed on its label. Gonzalez v. Health-Ade LLC, 28-1836 (N.D. Cal., filed March 23, 2018). The complaint alleges that the nutrition panels for nine of Health-Ade's products state they contain from two to four grams of sugar per 8-ounce serving, but the plaintiffs’ testing apparently indicates the beverages contain between 11 and 13 grams per serving. Claiming false and misleading advertising, unjust enrichment, breach of warranties and negligent misrepresentation, the plaintiffs seek certification of nationwide and California classes, injunctive relief, corrective advertising, damages and application of the common fund doctrine.

A consumer has filed a putative class action alleging that Brew Dr. Kombucha misleadingly advertises its products as containing “billions” of probiotic bacteria. Bazer v. Brew Dr. Kombucha, No. 2018-2943 (Ill. Chancery Ct., Cook Cty., filed March 5, 2018). The plaintiff asserts that he bought several bottles of kombucha in different flavors because he heard about the benefits of the beverage and the probiotic bacteria it purportedly contains. According to the complaint, tests showed that the product contained about 50,000 bacterial colonies rather than the "billions" advertised on the bottle’s label. Claiming violations of consumer-protection laws, breach of warranties and unjust enrichment, the plaintiff seeks class certification, disgorgement and attorney’s fees.

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