Venable partner Angel Garganta was quoted in a December 14, 2016, FoodNavigator article on a suit against Nestle USA that it improperly labeled certain products containing citric acid as containing "no preservatives." While citric acid can serve as a preservative, it can also be used for a variety of other purposes in the production and flavoring of frozen prepared foods. On products where citric acid is used as a preservative, Nestle does not use the "no preservatives" label, suggesting they are aware of citric acid's use in different products.
"This does strike me as a bit of a 'gotcha' claim, and Nestle USA should indeed be able to argue that it uses citric acid for some other purpose," said Garganta. "Even if citric acid were a preservative and the label is wrong, that begs the question of how consumers were damaged by it, as well as whether and to what extent consumers even relied on the 'no preservatives' claim. As is the case in so many of these food labeling cases, a mere error in labeling does not necessarily mean that there was consumer deception, let alone that the alleged mislabeling was sufficiently material to, or relied on by, consumers to justify certifying a class, or that plaintiff can quantify damages attributable to the supposed mislabeling."