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.
Continue Reading New York Federal Court Dismisses Two False Advertising Suits Based on Malic Acid
A court in the Northern District of California recently dismissed a complaint brought against several beverage companies, including Coca-Cola, on behalf of a putative class of consumers and the Sierra Club. Swartz v. Coca-Cola Co., No. 21-cv-04643-JD, 2022 U.S. Dist. LEXIS 209641 (N.D. Cal. Nov. 18, 2022). Asserting claims under California and common law, plaintiffs alleged that the “100% recyclable” representation on single-use plastic bottles supplied by defendants is false and misleading because not all plastic bottles discarded into recycling bins are processed into reusable material. Plaintiffs’ complaint cited to studies showing that recycling facilities in the U.S. lack the capacity to process most of the plastic waste generated, and not all plastic processed turns into material for reuse. Resolving defendants’ motion to dismiss, the court acknowledged that “the question of consumer deception may be a factual matter unsuitable for resolution in a motion to dismiss,” but concluded that plaintiffs here failed to meet “the initial burden of pleading factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged as informed by judicial experience and common sense.”
Courts in the Northern District of California continue to turn away lawsuits alleging that food and beverage companies must adjust protein content claims to account for protein digestibility. In Brown v. Nature’s Path Foods, Inc., 2022 WL 717816 (N.D. Cal. Mar. 10, 2022), Judge Gilliam observed that recent FDA guidance reaffirms that companies may
The Southern District of California recently declined to certify a class based on plaintiffs’ failure to offer class wide proof of deception and materiality. In Gross et al. v. Vilore Foods Company, Inc., plaintiffs alleged that Kern fruit juice products were deceptively labeled as “100% Natural” or made with whole fruit when the drinks in fact contained artificial ingredients. Plaintiffs brought claims under various California laws, including the UCL, CLRA, and FAL. To certify a class, plaintiffs were required to offer common proof both that the challenged representations were deceptive or misleading to a reasonable consumer; and that the challenged representations were material, meaning a reasonable person would attach importance to the representations that Kern’s fruit juice is “100% natural” or made with whole fruit. The court held that plaintiffs satisfied neither burden.
First, as to deception, the only evidence Plaintiffs cited was their expert’s report. Plaintiffs’ expert purported to assess the importance consumers placed on certain product attributes, and how claims such as “artificially flavored” affected their willingness to pay for a product. Plaintiffs’ expert concluded that consumers were willing to pay approximately 29% more for a Kern product that did not disclose its use of artificial flavors, and approximately 30% less for a product disclosing that it contained artificial flavors. The court found this evidence insufficient because consumers’ willingness to pay more or less for a product said nothing about whether the labels at issue would lead consumers to believe that the products did not contain artificial flavors, or contained only natural flavors. As a result, the court held that Plaintiffs’ expert’s opinion could not constitute common proof of deception.
Continue Reading Consumer Survey Did Not Constitute Common Proof of Deception or Materiality
As discussed in our recent post, a court in the Northern District of California recently dismissed a complaint against Kashi involving its front-of-pack protein content claims. See Nacarino v. Kashi Co., No. 21-CV-07036-VC, 2022 WL 390815, at *1 (N.D. Cal. Feb. 9, 2022). That decision confirmed that food manufacturers may use the “nitrogen method” to calculate protein content claims made outside the Nutrition Facts Label and that plaintiffs’ theory that manufacturers must adjust such claims to reflect protein digestibility is preempted. Judge Seeborg, also of the Northern District of California, followed in the footsteps of the Kashi court on February 15 by dismissing with prejudice a virtually identical case against KIND. See Chong v. KIND LLC, No. 21-CV-04528-RS, 2022 WL 464149 (N.D. Cal. Feb. 15, 2022).
Background
Many food companies now make quantitative protein content claims on the front of pack or elsewhere on their product labels outside the Nutrition Facts Label (NFL), such as the example from a recent case below:
FDA regulations direct manufacturers to use the “nitrogen method”—which generally calculates protein content by multiplying the nitrogen content of the food by 6.25—when calculating the amount of protein reported inside the NFL. Companies have generally used the same method for protein claims made elsewhere on the label, i.e., outside the NFL.