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Court Decides Motion to Dismiss Crystal Light “No Artificial Flavors” Labeling Suit Lacks Juice

Last month, Judge Dale S. Fischer of the U.S. District Court for the Central District of California denied Kraft Heinz’s motion to dismiss a putative nationwide class action alleging Kraft falsely advertised its “Crystal Light” drink products as containing no artificial flavors when, according to plaintiffs, they contain synthetic DL-Malic Acid. Narguess Noohi v. The Kraft Heinz Company, No. 19-CV-10658-DSF-SK (C.D. Cal. July 20, 2020). 

Plaintiffs alleged Kraft’s “no artificial flavors” labeling was false and misleading because Crystal Light includes DL-Malic Acid, which according to plaintiffs constitutes an artificial flavor. Plaintiffs alleged this misleading labeling caused them to buy products they would not have otherwise purchased. The suit asserted claims under California, New York, Texas and Georgia state law. Kraft moved to dismiss on the grounds that plaintiffs did not adequately allege the malic acid contained in Crystal Light was “artificial” and constituted a “flavor.”

In addressing whether plaintiffs adequately alleged malic acid was “artificial,” the court first relied on FDA regulations to note there are two types of malic acid: L-malic acid, which is naturally occurring, and DL-malic acid, which is made commercially. The court observed that plaintiffs explicitly distinguished between these two forms, and unequivocally alleged Kraft uses artificial DL-Malic Acid in Crystal Light products. According to the court, these allegations were not too general to state a claim at the pleading stage. In reaching this result, the court rejected Kraft’s argument that plaintiffs were required to allege how they discovered the malic acid in Crystal Light is artificial. The court stated that while such information would have made plaintiffs’ allegations stronger, its absence was not fatal at the pleading stage.

The Court also found unappetizing Kraft’s argument that plaintiffs failed to adequately allege the DL-malic acid in Crystal Light acts as a “flavor.” The complaint alleged Kraft included DL-malic acid to help “make their products taste tart and fruity.” Kraft argued these allegations actually suggest DL-malic acid is used as a flavor enhancer, not as a flavor. However, citing other cases that addressed this issue on a motion to dismiss, the Court concluded that whether the malic acid in Crystal Light acts as a flavor or a flavor enhancer is a factual dispute that cannot be resolved at the pleading stage.

To read more about courts’ treatment of “no artificial flavors” food labeling claims, see our prior coverage of Branca v. Bai Brands, No. 18-00757 (S.D. Cal. 2019) (denying motion to dismiss complaint making similar allegations about the use of DL-malic acid in Bai beverages), as well as our prior coverage of Clark v. Hershey, 18-cv-06113 (N.D. Cal. 2019) (dismissing on summary judgment claims that Hershey falsely advertised its Brookside chocolates as containing “no artificial flavors” when they contain malic acid). Watch this space as we continue to cover courts’ efforts to grapple with the question of what constitutes an “artificial flavor.”

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 240
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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Anisha Shenai-Khatkhate Litigation Attorney Proskauer Rose Law Firm
Associate

Anisha Shenai-Khatkhate is an associate in the Litigation Department at Proskauer Rose LLP.

212.969.3574
Bryant D. Wright Litigation Attorney Proskauer
Associate

Bryant Wright earned his J.D. from Duke University, where he was President of the Black Law Students Association and a member of the Duke Law First Amendment clinic. While at Duke, he worked as a legal intern for the Southern Center for Human Rights.

Prior to law school, Bryant taught middle school Social Studies and Language Arts in Brownsville, Brooklyn.

212-969-3268
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