Last month, Judge Dale S. Fischer of the U.S. District Court for the Central District of California denied Kraft Heinz’s motion to dismiss a putative nationwide class action alleging Kraft falsely advertised its “Crystal Light” drink products as containing no artificial flavors when, according to plaintiffs, they contain synthetic DL-Malic Acid. Narguess Noohi v. The Kraft Heinz Company, No. 19-CV-10658-DSF-SK (C.D. Cal. July 20, 2020). 

Plaintiffs alleged Kraft’s “no artificial flavors” labeling was false and misleading because Crystal Light includes DL-Malic Acid, which according to plaintiffs constitutes an artificial flavor. Plaintiffs alleged this misleading labeling caused them to buy products they would not have otherwise purchased. The suit asserted claims under California, New York, Texas and Georgia state law. Kraft moved to dismiss on the grounds that plaintiffs did not adequately allege the malic acid contained in Crystal Light was “artificial” and constituted a “flavor.”

In addressing whether plaintiffs adequately alleged malic acid was “artificial,” the court first relied on FDA regulations to note there are two types of malic acid: L-malic acid, which is naturally occurring, and DL-malic acid, which is made commercially. The court observed that plaintiffs explicitly distinguished between these two forms, and unequivocally alleged Kraft uses artificial DL-Malic Acid in Crystal Light products. According to the court, these allegations were not too general to state a claim at the pleading stage. In reaching this result, the court rejected Kraft’s argument that plaintiffs were required to allege how they discovered the malic acid in Crystal Light is artificial. The court stated that while such information would have made plaintiffs’ allegations stronger, its absence was not fatal at the pleading stage.

The Court also found unappetizing Kraft’s argument that plaintiffs failed to adequately allege the DL-malic acid in Crystal Light acts as a “flavor.” The complaint alleged Kraft included DL-malic acid to help “make their products taste tart and fruity.” Kraft argued these allegations actually suggest DL-malic acid is used as a flavor enhancer, not as a flavor. However, citing other cases that addressed this issue on a motion to dismiss, the Court concluded that whether the malic acid in Crystal Light acts as a flavor or a flavor enhancer is a factual dispute that cannot be resolved at the pleading stage.

To read more about courts’ treatment of “no artificial flavors” food labeling claims, see our prior coverage  of Branca v. Bai Brands, No. 18-00757 (S.D. Cal. 2019) (denying motion to dismiss complaint making similar allegations about the use of DL-malic acid in Bai beverages), as well as our prior coverage of Clark v. Hershey, 18-cv-06113 (N.D. Cal. 2019) (dismissing on summary judgment claims that Hershey falsely advertised its Brookside chocolates as containing “no artificial flavors” when they contain malic acid). Watch this space as we continue to cover courts’ efforts to grapple with the question of what constitutes an “artificial flavor.”