Flying Embers Hard Seltzer, Hard Kombucha Fortification Claims Class Action

Is it misleading or deceptive to advertise alcoholic beverages as being fortified with vitamins or other healthy substances? The complaint for this class action says yes, bringing suit against Fermented Sciences, Inc. for the claims on its Flying Embers Hard Seltzer and Hard Kombucha containers.

Two classes have been defined for this action:

• The Illinois Class is all persons in Illinois who bought the products during the applicable statutes of limitations.
• The Consumer Fraud Multi-State Class is all persons in North Dakota, Kansas, West Virginia, Wyoming, and Delaware who bought the products during the applicable statutes of limitations.

Pages 1 and 2 of the complaint shows the packaging for six-packs of Flying Embers Hard Seltzer and Hard Kombucha. The claims on the packaging promise “Antioxidant Vit[amin] C,” “Antioxidants,” “Real Botanicals,” and “Crafted With Live Probiotics.”

The complaint alleges, “The marketing of hard seltzer and hard kombucha reflect the arc of regular beverages, which previously sought to remove negative ingredients, such as sugar and artificial colors.” Now, however, the complaint says, they are going a step farther and claiming to add “positive components, like vitamins and probiotics.”

According to the complaint, alcoholic beverages “are almost entirely empty calories.”

The complaint says, “Evidence suggest that even drinking within recommended limits may increase the overall risk of death from various causes, such as from several types of cancer and some forms of cardiovascular disease.” It also claims, “Over many years, consumption of excess alcohol can impair the body’s ability to digest and utilize nutrients.”

Also, the complaint claims that the Food and Drug Administration (FDA) has “requirements [that] are intended to prohibit random fortification of foods” because that can result in “deceptive or misleading claims.”

“In a 2015 Q&A Guidance Document relating to the Fortification Policy,” the complaint claims, “the FDA stated [it] did not consider ‘it appropriate to add vitamins and minerals to alcoholic beverages.”

The complaint quotes the nonprofit group Center for Science in the Public Interest (CSPI) as saying that “claims such as ‘made with antioxidant vitamin C’ convey healthfulness and are misleading on alcoholic beverages given their empty calories, association with serious health conditions, and anti-nutrient properties.”

According to the complaint, studies show that consumers believe that foods fortified with vitamins are more healthful than those that are not.

The complaint alleges, “Fortification of carbonated beverages is prohibited because this type of product is typically (1) high in sugar or empty calories, (2) not nutrient-dense, and (3) not intended to be a significant part of a balanced diet.”

Another statement the complaint makes is, “Current scientific research indicates that 20% of the daily value of vitamin C cannot provide health benefits which overcome the negative effects of one alcoholic beverage.”

In general, the complaint alleges that the benefits provided by the fortification of the drinks are outweighed by the health detriments of alcohol consumption.

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Deceptive Labels, Representations Imply Product Is Healthy