April 10, 2018

Food Navigator-USA quotes Angel Garganta on a lawsuit alleging the use of artificially flavored sugar water labeled as fruit juice

2 min

Angel Garganta was quoted on April 10, 2018, in Food Navigator-USA on a lawsuit filed against Campbell Soup for allegedly falsely advertising V8 Splash as "healthy, natural beverages brimming with healthful fruit and vegetable juices" when the brand is "artificially-flavored sugar-water labeled as if it were fruit juice."

According to the article, much of the complaint filed relates to the source and function of malic acid—a food additive commonly used as an acidulant and to add tartness. While malic acid [L-malic acid] occurs naturally in some fruits, the version Campbell Soup is using in V8 Splash is d-l malic acid, a "synthetic petrochemical added to stimulate the flavor of real fruit," alleges the complaint, which argues that the beverages should therefore be described as "artificially flavored."

"Frito-Lay [was] sued by the same law firm last year in [a] similar [case] over malic acid, with [the] [case] proceeding beyond the emotion to dismiss stage, although plaintiffs face an uphill battle in the next phase of the litigation," Mr. Garganta said.

In a March 7 order denying a motion to dismiss the case against Frito-Lay, however, judge Janis Sammartino said it was not possible to make a factual determination at this stage as to whether the malic acid in the chips served as an artificial flavor, and let the case proceed.

Frustrating though this must have been for Frito-Lay, said Garganta, it is by no means clear that these cases will make much headway, regardless of the classification of malic acid: "A number of courts have held that a regulatory violation does not always amount to actionable consumer deception."

"If you want to get a class certified you also need to present a damages model that establishes a price premium on a class-wide basis that is attributable to the alleged misrepresentation, and that’s going to be extremely difficult in a case like this."