A pair of malic acid decisions recently issued by Judge Coleman in the Northern District Court of Illinois reaffirmed that the statements “natural flavors with other natural flavors” and “no artificial flavors” receive different treatment under state false advertising laws, at least in that district.

In Boss v. Kraft Heinz Co., the plaintiffs alleged that Kraft Heinz’s MiO water-flavoring products contained synthetic malic acid, rendering false and misleading the claim “natural flavors with other natural flavors” on the products’ labeling.  2023 WL 5804234 (N.D. Ill. Sept. 7, 2023).  The court, applying the reasoning of Gouwens v. Target Corp., 2022 WL 18027524 (N.D. Ill. Dec. 30, 2022), which we previously covered, dismissed the complaint.  Specifically, the court reasoned that even assuming the malic acid in the products did function as an artificial flavor, the plaintiffs could not establish that the claim “natural flavors with other natural flavors” was misleading, because the claim did not amount to an affirmative representation that the products were free from artificial flavors.  Furthermore, similar to Gouwens, where the court held that no reasonable consumer would believe that “a shelf-stable, bright red fruit punch flavored liquid water enhancer” was free of artificial ingredients absent an affirmative statement to that effect, no reasonable consumer would believe a MiO water-flavoring product did not contain artificial flavors when there was no such affirmative representation.

By contrast, in Tatum v. Kraft Heinz Co., Judge Coleman declined to dismiss similar allegations over Kraft Heinz’s Crystal Light drinks.  2023 WL 5804252 (N.D. Ill. Sept. 7, 2023).  According to the court, the Crystal Light drinks “[went] further than merely omitting the disclosure of artificial flavors” by expressly stating that the drinks contained “no artificial sweeteners, flavors, or preservatives.”  The court held that such an affirmative statement was likely to mislead reasonable consumers to believe that the drinks were free from artificial flavors.  And because the court found the question of whether malic acid functioned as a flavor or a flavor enhancer inappropriate for resolution on a motion to dismiss, the court allowed the action to move forward.