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Dishing Out the Latest F&B Litigation Updates: Part 3

Malic Acid: Newest Culprit in “Natural” Marketing Case Trend

Hilsley v. Ocean Spray Cranberries, Inc., No. 17-cv-2335, 2018 WL 6245894 (S.D. Cal. Nov. 29, 2018)

The Skinny: Malic acid is a common food ingredient used for flavor and pH control. Because of its prevalence and varying uses, a flurry of class action cases were recently filed against companies that use malic acid while simultaneously claiming “no artificial flavors” exist in their product. In Hilsley, a California federal judge granted certification against Ocean Spray.

The Meat and Potatoes: Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California found that “the common, aggregation-enabling issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” Defendant unsuccessfully challenged predominance by arguing that plaintiff has not established that malic and fumaric acids function as flavors.  However, the Court found the relevant question to be whether the label is deceptive to a reasonable consumer—not whether the chemicals actually did what plaintiff alleges.

This case—and the other cases listed below in this malic acid litigation trend— are ones to watch given the factual questions involved regarding whether malic acid serves as a flavor enhancement.

Read Part 1, Part 2 and Part 4.

© 2020 Bilzin Sumberg Baena Price & Axelrod LLP

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About this Author

Lori Lustrin, Commercial Litigation Attorney, Bilzin Sumberg Law Firm
Partner

Lori is a general commercial litigator who focuses on complex class-action and plaintiff opt-out antitrust litigation in federal court. In addition to antitrust work, her class action experience includes defending clients in the consumer products, homebuilding, real estate investment, and food and beverage industries.

Lori has also taken an interest in the emerging area of healthcare antitrust litigation and she has authored several articles on the subject. In addition to her varied federal court work, Lori has substantial experience in complex business litigation...

305-350-2385
Melissa Pallet-Vasquez, Litigation Attorney, Bilzin Sumberg Law Firm
Partner

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in...

305-350-2393