A court in the Northern District of Illinois and a court in the Middle District of Florida recently arrived at opposite conclusions in two very similar putative class actions, both of which alleged that the claim “natural flavor with other natural flavors” on drink labels was misleading because synthetic malic acid was present in the product.

In Gouwens v. Target Corp., No. 3:22-cv-50016 (N.D. Ill. Dec. 30, 2022), the court dismissed the plaintiff’s complaint alleging that the labeling of Market Pantry fruit punch-flavored water enhancer was misleading.  The plaintiff claimed that the product contained synthetic malic acid, but the front label stated “natural flavor with other natural flavors” and the ingredient list identified only generic malic acid instead of the specific synthetic malic acid used.  The plaintiff claimed that this representation misled her and other consumers to believe that the fruit punch taste was from natural flavors only.

The court held that the plaintiff had failed plausibly to allege that the label could mislead a reasonable consumer.  According to the court, the phrase “natural flavor with other natural flavors” did not amount to “an affirmative representation” that the product was free from artificial flavors.  As the court explained, “[a] reasonable consumer would not believe that a shelf-stable, bright red fruit punch flavored liquid water enhancer was free of artificial ingredients absent an affirmative statement to the contrary.”  Thus, the plaintiff’s claim was based on “a fanciful and unreasonable interpretation” of the label.  As for listing generic malic acid in the ingredient list, the court agreed with the defendant that this was consistent with FDA regulation 21 C.F.R. § 101.4, which requires ingredients to be listed by their common or usual name. 

By contrast, a court in the Middle District of Florida denied the defendant’s motion to dismiss in Adams v. Kraft Heinz Co., No. 5:22-cv-00290 (M.D. Fla. Jan. 9, 2023).  There, the plaintiff alleged that a “natural flavor with other natural flavors” claim on MiO brand water enhancers was deceptive when the products contained synthetic malic acid.  The Adams court sustained the claim, reasoning that, without any further indicia of artificial flavorings, a reasonable consumer could interpret the “natural flavor with other natural flavors” claim as representing that the products have only natural flavors.  The court found further support for its decision in FDA regulation 21 C.F.R. § 101.22(i)(2), which requires disclosure on the principal display panel if any artificial flavor “simulates, resembles or reinforces the characterizing flavor.”