We previously covered the Southern District of California’s dismissal of a plaintiff’s claim that defendant falsely advertised that its licorice candy was “naturally flavored” because testing allegedly showed that the product contained synthetic malic acid that functioned as a flavor.  Last week, in Trammell v. KLN Enters., Inc., — F.4th —-, 2026 WL 1356403 (9th Cir. May 15, 2026), the Ninth Circuit held that the plaintiff alleged plausible claims and reversed the district court’s ruling.

First, the Ninth Circuit held that the plaintiff’s complaint satisfied Rule 9(b).  His allegations set forth the essential elements of fraud: the “who” (the defendant), the “what” (the defendant’s representation that the product was free of artificial colors and flavors), the “when” (the plaintiff bought the product in May 2023), the “where” (the purchase occurred at a Target store in Encinitas, California), and the “how” (the statements represented that the product is “naturally flavored,” “natural strawberry & raspberry flavored licorice” and “free of … artificial colors & flavors”).  The plaintiff also gave sufficient notice to the defendant and provided the court with sufficient assurance that his theory of liability had a “basis in fact,” because he alleged sufficient details about the laboratory testing that allegedly detected artificial malic acid in the product.  The Ninth Circuit therefore distinguished Trammell from other malic acid cases (including Hawkins, which we covered previously) where the plaintiffs failed to state a claim because they did not allege sufficient (or any) details about alleged laboratory testing.

Second, the Ninth Circuit held that the plaintiff sufficiently alleged consumer fraud because he plausibly alleged “that a reasonable consumer is likely to be deceived by a product that claims to be free of artificial flavors when that claim is (allegedly) not true.”  According to the Ninth Circuit, “[p]leading the presence of an artificial flavor in the Product—namely, artificial DL malic acid, as disclosed by laboratory tests, the details of which have been alleged—is enough to satisfy the reasonable-consumer standard on a motion to dismiss.”

Litigation challenging the use of allegedly artificial malic and citric acid remains a hot topic, and the Trammell ruling helps clarify what suffices to state such a claim in the Ninth Circuit.  To the extent Trammell suggests such plaintiffs must support their claims with plausible allegations based on laboratory testing that the challenged product actually contains artificial malic or citric acid, the decision will be helpful for defendants confronting cases where no such testing is alleged.