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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.

© 2019 Bilzin Sumberg Baena Price & Axelrod LLP

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Jennifer Junger Commercial LItigator Bilzin Sumberg Law Firm
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Jennifer focuses her practice on commercial litigation. At George Washington University Law School, Jennifer was selected to participate in the Family Justice Litigation Clinic, where she was certified by the D.C. Court of Appeals to appear in court on Family Law matters. During law school, Jennifer served as a clerk for the Senate's Permanent Subcommittee on Investigations, as well as for the Child Exploitation and Obscenity Section of the Department of Justice. Jennifer also worked as a law clerk for the U.S. Attorney's Office for the Southern District of Florida.

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Lori Lustrin, Mortgage Attorney, Bilzin Sumberg Law Firm
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Lori Lustrin is an associate in Bilzin Sumberg's Litigation Group. Lori’s practice focuses on antitrust and federal multidistrict class actions. She also has substantial experience in a broad range of complex business litigation matters, including intellectual property disputes, landlord-tenant disputes, land use litigation, bankruptcy litigation, employment disputes, professional malpractice actions, unfair and deceptive trade practices issues, fraud claims, defamation suits, products liability matters, and international arbitrations. Lori’s varied practice has allowed her to represent clients through trial and appeal, both in Florida and in federal courts across the country.

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Melissa Pallet-Vasquez, Litigation Attorney, Bilzen Sumberg Law Firm
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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...

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