A California federal court has preliminarily approved a settlement agreement between a consumer and Ferrara Candy Co. alleging the company misleadingly advertised its SweeTarts as free of artificial flavors despite containing malic acid. Littlejohn v. Ferrara Candy Co., No. 18-0658 (S.D. Cal., entered February 28, 2019). Under the agreement, Ferrara will remove the phrase "no artificial flavors" from its packaging and marketing materials and pay $272,000 in attorney's fees.
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Shook Partner Frank Cruz-Alvarez and Associate Rachel Forman have authored an article for WLF Legal Pulse examining a California federal court's decision to certify a class of consumers alleging they were misled by Ocean Spray Cranberries Inc.'s marketing claim that its products contain no artificial flavoring despite containing malic and fumaric acids. The decision has "thrown the doors open for class certification in food-labeling cases," Cruz-Alvarez and Forman write. "Although packaged-food businesses have responded to years of class-action lawsuits with labeling modifications that make their products less-inviting targets, decisions like Hilsley show that plaintiffs’ lawyers are equally creative and determined to keep the claims coming," the authors conclude. "This is especially true for products labeled as 'natural' or free of artificial ingredients when those products arguably do contain synthetic ingredients, regardless of their purpose. That new angle might just be enough to survive something as rigorous as the class-certification analysis…
A California federal court has partially certified a class of consumers that alleges Ocean Spray Cranberries Inc. misled them into believing that their products were free of artificial flavoring but contained malic acid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., entered November 29, 2018). The court first found that the proposed class met the requirements of typicality, numerosity, commonality and adequacy of the class representative before focusing on the predominance issue for the breach of express warranty and breach of implied warranty allegations. The plaintiff asserted that damages for those allegations could be determined with a survey that apparently identified the price premium that consumers would pay based on the "no artificial flavors" representation. Ocean Spray argued that the "proposed damages model is fatally flawed" because of the use of "diverse comparative products, retailing concepts, juice percentages and an irrelevant specific time period," and the court agreed,…
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 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…
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.…
Consumers have filed lawsuits alleging that companies misrepresent their products as "natural" because they contain d-malic acid. One lawsuit targets Ocean Spray Cranberries Inc., alleging it mislabels its juices as free from artificial flavors despite containing d-malic acid rather than the naturally occurring l-malic acid. Froio v. Ocean Spray Cranberries Inc., No. 18-12005 (D. Mass., filed September 24, 2018). The complaint further alleges that the juices contain furmaric acid, which is "manufactured from petrochemical feedstock, either benzene or butane, through chemical transformation to maleic anhydride." The plaintiffs argue that a "reasonable consumer understands Defendant's claims that the Products contain no 'artificial' flavoring to mean that the flavoring is derived from a natural source." For allegations of fraud, negligent misrepresentation, unjust enrichment and violations of New York and Massachusetts consumer-protection statutes, the plaintiffs seek class certification, damages, injunctive relief, restitution and attorney's fees. Two consumers have alleged that Neurobrands LLC also…
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