Kroger Sparkling Water Drinks Contain Malic Acid Class Action

The Kroger Company makes a number of house-branded sparkling-water drinks in fruit flavors that purport to be “Naturally Flavored.” However, the complaint for this class action alleges that they contain an artificial ingredient, dl-malic acid, that contributes to the flavor and that is not natural.

A class and two subclasses have been defined for this action:

• The class is any person who bought any of the products, in person, at a Kroger supermarket (that is, not in an online transaction) during the statute of limitations.
• The Ohio Subclass is all Ohio residents who bought any of the products, in person, at a Kroger supermarket (that is, not in an online transaction) during the statute of limitations.
• The Tennessee Subclass is all Tennessee residents who bought any of the products, in person, at a Kroger supermarket (that is, not in an online transaction) during the statute of limitations.

Page 8 of the complaint displays an image of the bottle of one of the products, with a pull-out enlarging the words “Naturally Flavored.” Page 9 shows the back of the bottle, with a pull-out enlarging the ingredient label and showing, among other things, “Malic Acid” as the third most predominant ingredient.

The drinks come in different flavors, including Strawberry, White Grape, Mixed Berry, Kiwi Strawberry, Peach, Blueberry Pomegranate, Black and Blueberry, Black Cherry, and Pineapple Coconut. The complaint alleges, “All of these fruit flavors are primary recognizable flavors and are therefore by law considered characterizing flavors.”

But the characterizing flavors are not created exclusively from the fruits identified. The product contains malic acid as well. The complaint alleges that two kinds of malic acid exist, one natural and the other “a synthetic petrochemical compound and an artificial flavoring[,]”that Kroger chose to include.

The complaint quotes the law in saying, “If a product’s ‘characterizing flavor’ (e.g. the ‘Strawberry’ label on the Products) is not created exclusively by the named flavor ingredient (for instance, strawberry) and instead includes the use of an artificial flavor that ‘simulates, resembles or reinforces’ the characterizing flavor, federal and state law require that the food must be prominently labeled as ‘artificial’ or ‘artificially flavored.’”

According to the complaint, food products with labels must have “a statement of the presence or absence of any characterizing ingredients(s) or component(s)” when their presence or absence in the food might make a material difference to the consumer in terms of its price, and when consumers “may otherwise be misled about the presence or absence” of these substances or components.” The products do not contain any such statement, the complaint claims.

The complaint alleges that the products are both falsely advertised and misbranded.

Article Type: Lawsuit
Topic: Consumer
Tags: All Natural Claims, Deceptive Advertising, Deceptive Labels