Consumers these days prefer “healthier” food and drink products. Fermented Sciences, Inc., which does business as Flying Embers, advertises certain of its hard seltzers as having “Antioxidant Vit C + Live Probiotics” and as being “Brewed with Superfruits,” but the complaint for this class action alleges that this is misleading and dangerous because it violates Food and Drug Administration (FDA) regulations and policies.
The 49-State Class is all persons in each state except Illinois who bought the products between July 1, 2028 and the present. A California Subclass has also been defined, for those in the above class in California.
In recent years, the market for hard seltzers has skyrocketed, with sales soaring from $210 million in 2018 to $1.2 billion in 2019. The complaint alleges that Flying Embers has taken to making the claims at issue in order to differentiate itself from its competitors.
Page 3 of the complaint shows images of a product carton and a can of Clementine Hibiscus hard seltzer, with claims including “Antioxidant Vit C + Live Probiotics” and “Brewed with Superfruits.” The complaint’s central is that these representations are “unlawful, misleading, and designed to deceive consumers” into buying the products.
Federal regulations require that the products carry warnings about alcohol, including, “Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery, and may cause health problems.”
But the complaint alleges, “Over the long[ ]term, consuming excess alcohol can also impair the body’s ability to digest and utilize nutrients.” In fact, the complaint says, “[a]lcohol is a diuretic, causing the kidneys to remove fluid from the body more quickly than normal. This process of elimination takes precedence over all other metabolic processes, including the absorption of nutrients and minerals. Thus, the Products will do little to contribute to the nutrient needs of an adult.”
“Alcohol is a toxin[,]” the complaint alleges, “and when consumed, the body prioritizes removal of the toxin over all other processes, including metabolizing nutrients. Thus, alcohol consumption interferes with nutrient absorption, and even where a body absorbs nutrients, alcohol prevents the body from using nutrients by altering the transport, metabolism, and storage of nutrients.”
In addition, the complaint alleges that alcohol kills probiotics, and it also claims that the small amount of any “superfruit” in the drinks cannot provide the health benefits of eating the real fruit.
According to the complaint, the FDA has a Fortification Policy that says that fortification of certain products, such as snacks and carbonated drinks, is not appropriate because it “could result in deceptive and misleading claims.” These products include alcoholic drinks.
Also, the complaint alleges, “Where a product makes a ‘plus’ claim [such as ‘Antioxidant Vit C + Live Probiotics’], the product must comply with the Fortification Policy.” The complaint therefore calls the products unlawful and misbranded.
Article Type: LawsuitTopic: Consumer
Most Recent Case Event
Flying Embers Hard Seltzer Nutrient Claims Complaint
July 1, 2022
Consumers these days prefer “healthier” food and drink products. Fermented Sciences, Inc., which does business as Flying Embers, advertises certain of its hard seltzers as having “Antioxidant Vit C + Live Probiotics” and as being “Brewed with Superfruits,” but the complaint for this class action alleges that this is misleading and dangerous because it violates Food and Drug Administration (FDA) regulations and policies.
Flying Embers Hard Seltzer Nutrient Claims ComplaintCase Event History
Flying Embers Hard Seltzer Nutrient Claims Complaint
July 1, 2022
Consumers these days prefer “healthier” food and drink products. Fermented Sciences, Inc., which does business as Flying Embers, advertises certain of its hard seltzers as having “Antioxidant Vit C + Live Probiotics” and as being “Brewed with Superfruits,” but the complaint for this class action alleges that this is misleading and dangerous because it violates Food and Drug Administration (FDA) regulations and policies.
Flying Embers Hard Seltzer Nutrient Claims Complaint