Flying Embers Hard Seltzer, Hard Kombucha Unlawful Fortification Class Action

The market for hard seltzers and hard kombucha has become competitive, with many different products vying for public attention. The complaint for this class action alleges that Flying Embers Hard Seltzer and Hard Kombucha advertise in a way that implies the drinks have health benefits, which the complaint claims is misleading and involves improper fortification.

Two classes have been defined for this action:

• The Florida Class is all persons in Florida who bought the products during the applicable statutes of limitations.
• The Consumer Fraud Multi-State Class is all persons in Alabama, Alaska, Georgia, South Carolina, Tennessee, and Virginia who bought the products during the applicable statutes of limitations.

The complaint alleges, “Hard kombucha and hard seltzer are typically low in calories, sugar, and carbohydrates, organic, non-GMO and gluten-free.” As such, they may seem to consumers to be better for their health than other kinds of alcoholic drinks. Previously, the complaint alleges, companies concentrated on removing negative ingredients, such as sugar and artificial colors, but now they “have begun to add back positive components, like vitamins and probiotics.”

Pages 1 through 4 of the complaint show views of the carton, cans, and labeling of the Flying Embers products, which show the words, “Antioxidant Vit C,” “Antioxidants,” “Real Botanicals,” Crafted with Live Probiotics,” and “Brewed with Benefits,” which the complaint alleges suggest positive benefits.

However, the complaint points out that alcohol itself is not healthy. Alcoholic products must bear government-mandated warnings, including that “[c]onsumption of alcoholic beverages … may cause health problems.”

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

The complaint alleges that the Food and Drug Administration (FDA) does not support the “random fortification of foods” because it can lead to deceptive or misleading impressions.

“In a 2015 Q&A Guidance Document relating to the Fortification Policy,” the complaint alleges, “the FDA stated they did not consider ‘it appropriate to add vitamins and minerals to alcoholic beverages.’” Also, the complaint claims, “Fortification of carbonated beverages is prohibited because this type of product is typically (1) high in sugar and/or empty calories, (2) not nutrient-dense, and (3) not intended to be a significant part of a balanced diet.”

The complaint therefore takes issue with the addition of antioxidants, probiotics, and adaptogens. One section of the complaint is titled, “Negative Effects of Consuming Alcoholic Beverage[s] Outweigh Positive Effects from Vitamin C[.]”

According to the complaint, consumers are misled by the claims on boxes, cans, and marketing materials and “gained an advantage against other companies, and against consumers seeking to purchase products which contained ingredients whose positive effects outweighed the negative effects from consuming alcohol.”

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