Judge Karas in the Southern District of New York recently dismissed two lawsuits alleging that defendants’ beverage products contained synthetic malic acid that functioned as a flavoring agent, rendering the “100% natural flavors” and “natural flavor with other natural flavor” claims on the product labels false and/or misleading.  

In Hawkins v. Coca-Cola Co., 2023 U.S. Dist. LEXIS 20931 (S.D.N.Y. Feb. 7, 2023), plaintiff alleged that the claim “100% natural flavors” on piña colada-flavored Fanta drinks misled her to believe that the product contained only natural flavors, but in reality the product contained synthetic malic acid that provided flavor.  Similarly, the plaintiff in Hoffman v. Kraft Heinz Foods Co., 2023 U.S. Dist. LEXIS 20929 (S.D.N.Y. Feb. 7, 2023) challenged the claim “natural flavor with other natural flavor” on a mango-peach flavored water enhancer, because the product allegedly contained synthetic malic acid.

In two orders issued on the same day, Judge Karas dismissed both amended complaints with prejudice.  The court held that the plaintiff in each case failed to adequately allege that the product contained synthetic malic acid.  According to Judge Karas, the plaintiffs leveled unsubstantiated and vague allegations that a laboratory analysis had concluded that the product contained synthetic malic acid, but failed to allege details such as the testing methodology, the date, time, or place of the testing, who conducted the testing, and the qualifications of the testers.  Therefore, the court declined to credit the conclusory allegations that the products contained synthetic malic acid.

Judge Karas’s decisions differ from the approach other courts have taken in malic acid cases.  As Judge Karas acknowledged in Hoffman, many courts outside the Second Circuit have focused on whether malic acid functioned as a flavor in the particular product.  And except for the Northern District of Illinois, courts have largely held that that question raises a factual dispute inappropriate for resolution on a motion to dismiss.  (See our previous coverage of the contrast between a case in the Northern District of Illinois and a case in the Middle District of Florida here.)  Judge Karas, however, declined to follow these out-of-circuit cases and instead relied on the reasoning from the “vanilla” cases in the Second Circuit.  In those cases, plaintiffs alleged that products marketed as containing vanilla were misleading because the products allegedly did not contain naturally derived vanilla extract.  Courts in the Second Circuit dismissed several of those complaints, finding they lacked factually substantiated allegations that the vanilla compounds were not derived from natural sources.  See, e.g., Barreto v. Westbrae Nat., Inc., 518 F. Supp. 3d 795, 803 (S.D.N.Y. 2021).  Judge Karas found those cases were equally applicable in the malic acid context.

Malic acid claims remain a focus of the plaintiffs’ bar, and Judge Karas’s decisions should be welcome for companies defending such claims.