i- In yet another lawsuit filed by attorney Spencer Sheehan, Plaintiffs alleged that Aldi’s diced peaches products (“Yellow Cling Diced Peaches in 100% Fruit Juice”) violate FDA’s regulations and are falsely and deceptively labeled, in part because they are made from concentrate (the ingredient list identifies “white grape juice concentrate” and “lemon juice concentrate”) and contain the food additives ascorbic acid and citric acid. Plaintiffs claim these ingredients are inconsistent with a 100% juice declaration.
- However, the lawsuit does not reference the fact that FDA’s regulations at 21 CFR 101.30(h)(1) provide that FDA is to calculate the percentage juice content of a reconstituted juice (i.e., a juice from concentrate) based on the Brix level (a measure of dissolved solids) of a reference single-strength (100%) juice. Thus, a reconstituted juice is not necessarily inconsistent with a 100% juice declaration. This point is also implicitly stated in paragraph (b)(3) which requires that other additives be declared when a 100% juice declaration is made, although for a 100% juice claim to be made such additives cannot result in a diminution of the “juice soluble solids” (i.e., Brix).
- Compliance or non-compliance with FDA’s regulations does not in itself provide evidence of consumer deception and the Court will have to decide whether a substantial portion of reasonable consumers would have been deceived under the circumstances. Nevertheless, compliance with FDA’s regulations likely will be a critical aspect of any preemption defense. In a case with some similarities, Bell v. Albertson Companies, Inc., No. 19-2741 (7th Cir. 2020), the 7th Circuit reversed a district court decision and held that Plaintiffs had plausibly alleged that a 100% grated parmesan cheese claim was deceptive when the product contained cellulose powder and potassium sorbate additives. Notably, a preemption defense was rejected because, while the additives were consistent with FDA’s standard of identity for parmesan cheese, the standard of identity did not address the 100% claim.
Lawsuit Targets 100% Juice Claim
Wednesday, May 1, 2024
