Arizona Beverages USA LLC faces state fraud claims for allegedly misrepresenting the calories per serving on the labeling of two beverage products.  In addition to a recent proposed class action lawsuit filed in the Southern District of New York alleging that Arnold Palmer Half & Half Iced Tea Lemonade is misrepresented as “Lite,” as discussed here, Arizona faces a class action lawsuit in the Northern District of Illinois over its 23-Ounce, Zero-Calorie drink, which the plaintiff alleges is false because the product contains 15 calories per can.

In a November 12, 2020 motion to dismiss the lawsuit based on federal preemption, Arizona asserts that the 23-Ounce, Zero-Calorie drink was in compliance with federal law in effect at the time when the beverage was purchased and that re-labeling the product as a “diet” drink following a change in nutrition labeling regulations does not mean the previous label was fraudulent.  Prior to the applicable compliance date for the new regulations of January 1, 2020, Arizona switched from counting calories based on an 8-Ounce serving to a 12-Ounce serving and began stating the full calorie count of the beverage.  The change resulted in a calorie count higher than zero.

We have provided detailed summaries of FDA’s 2016 final rules changing the Nutrition Facts label for packaged foods and updating regulations on serving sizes to – among other things – provide realistic Reference Amounts Customarily Consumed (RACCs).  Keller and Heckman will continue to monitor and report on class action litigation concerning calorie content claims.