Lawsuit Challenges Flavor Labeling in Product with Malic Acid
On March 14, 2022, a class-action lawsuit was filed against Publix Super Markets, Inc. for allegedly improperly and deceptively labeling their “strawberry watermelon water enhancers” (the “product”) as flavored with “natural flavor with other natural flavors.” In addition to the direct representation of the flavor in the flavor statement, the front panel of the product also included pictures of strawberries and watermelon slices, as well as red coloring in the surrounding packaging and text.
Malic acid was listed in the product as the second-most predominant ingredient (after water). Malic acid comes in two stereoisomeric forms (i.e., the atoms differ in their spatial arrangement, but have the same chemical formula and are connected in the same order): L-malic acid, which naturally occurs in fruits, and D-malic acid, which is manufactured from petroleum products and is commonly found in an equal mixture with L-malic acid (i.e., DL-malic acid). Plaintiff alleged that testing of the product revealed that it contained DL-malic acid, which is an artificial ingredient, and that it impacted the flavor profile of the product. Therefore, Plaintiff alleged that the product should have been labeled as “artificially flavored” or “artificial” to avoid misleading consumers and to be in accord with 21 CFR 101.22(i)(2).
There have been many similar lawsuits challenging the use of natural flavoring claims in products containing malic acid. See Examples. Defendants will often argue that DL-malic acid does not contribute to the flavor profile of the food and so it need not be considered in the flavoring statement. They often make a distinction between malic acid used as a “flavor enhancer” as opposed to a “flavoring agent” as defined in 21 CFR 170.3. However, while such arguments may have merit, the determination of whether a particular substance contributes to the flavor profile of a food is a fact-intensive one which cannot be resolved as the pleadings stage of litigation. Thus, these lawsuits are rarely dismissed.
Plaintiff also alleged that DL-malic acid was improperly declared as “malic acid” instead of “DL-malic acid” in the ingredient list. However, at least one court has held that the requirement to list an ingredient by its common or usual name does not require that malic acid be listed by its specific isomer and that simply “malic acid” is appropriate.