FOOD BEVERAGE D I G E S T JANUARY 2024 | 3 New Lawsuits Filed Lawsuit Alleges That Healthy Tonic Is Anything But Cummings v. Botanic Tonics LLC, No. 37-2023-00052818 (Cal. Sup. Ct. Dec. 6, 2023). A California consumer filed a putative class action in state court against the manufacturer of a health and wellness tonic and the convenience stores and gas stations that sell it. According to the complaint, the manufacturer advertised the tonic as a safe, non-addictive, and healthy alternative to alcohol. But the manufacturer allegedly failed to disclose that the product contained concentrated amounts of kratom, a highly addictive drug that targets the same opioid brain receptors as morphine. The complaint contends that the FDA has characterized kratom as an opioid and that, in April 2023, U.S. marshals at the direction of the FDA seized 1,000 kg of powdered kratom from the manufacturer’s plant in Oklahoma based on safety concerns. The defendant convenience store then directed its franchise stores to stop selling the product. This lawsuit joins a growing number of other actions targeting manufacturers of products containing kratom. Certain plaintiffs previously filed a class action in federal court against the same product manufacturer (as well as several retailers). The manufacturer and one of the retailers filed answers instead of moving to dismiss, and another retailer’s motion to dismiss was denied, indicating the defendants will have an uphill battle in shaking these allegations. Pee-Dee-Kass, Pee-Dee-Kass, Pee-Dee-Kass! Taylor v. Dave’s Killer Bread Inc., No. 1:23-cv-016439 (N.D. Ill. Dec. 1, 2023). Unlike the ever-popular movie Beetlejuice, saying “Pee-Dee-Kass” thrice will not summon any additional protein into allegedly mislabeled bread products. But it may still spread fear for manufacturers not including a percent daily value for protein when featuring prominent labeling representations about the amount of protein provided per serving. Known by its acronym PDCAAS (pronounced Pee-Dee-Kass and standing for the “Protein Digestibility Corrected Amino Acid Score”), according to the complaint, the FDA’s required method of measuring protein quality combines a protein source’s amino acid profile and its percent digestibility into a score that, when multiplied by the total protein quantity, shows how much protein in a product is actually digestible in an available form for humans. That score is used to find the “corrected amount of protein” able “to support human protein needs,” which, as required by FDA regulations, is to be featured as part of the percent daily value on the nutrition facts panel of food products. According to one protein-seeking plaintiff in Illinois, a popular manufacturer of a healthful line of bread products ignored those requirements and prominently labeled many of its products with claims that the products provide a specific amount of protein per serving but forewent the requisite percent daily values on its nutrition facts panel. According to the complaint, because the protein sources in the bread products are wheat and oats—ingredients with “low-quality proteins” that typically provide only 40–50% of the protein quantity claimed— the prominent front labeling statements are unlawful and deceptive because they lead consumers to believe they are actually receiving the total amount of protein advertised, when in fact, their bodies are only able to digest about half of it. Based on those allegations, the plaintiff seeks to certify nationwide and Illinois classes to pursue claims under Illinois’s consumer protection acts, common-law fraud, deceit, and misrepresentation and unjust enrichment. While these types of suits have been popping up across the country, we’ll follow closely to see whether a motion to dismiss is able to put this one into the afterlife waiting room. Jiggly Gelatin Allegedly Juiced with Artificial Preservatives Pagan v. Kraft Heinz Foods Co., No. 1:23-cv-10945 (S.D.N.Y. Dec. 18, 2023). A putative class action filed in New York accuses a defendant food manufacturer of mislabeling the ever-popular Jell-O gelatin products as containing “No Artificial Preservatives” when, in fact, the products contain citric acid—an allegedly “artificial preservative commonly used in food products.” According to the complaint, the defendant’s “No Artificial Preservatives” label deceives consumers into thinking the products do not contain artificial preservatives like citric acid and, therefore, induces them to purchase the products on this basis. The plaintiff asserts putative class claims for violation of New York’s statutory consumer protection laws, breach of warranty, and unjust enrichment. The complaint prays for damages, restitution, injunctive relief, and attorneys’ fees and costs. Cocoa Powder: Chocolate / Potato: Potahto – What’s the Difference? Hackman v. Van Leeuwen Ice Cream LLC, No. 2023-CAB-007346 (D.C. Sup. Ct. Dec. 4, 2023). A chocolate-loving plaintiff who is screaming about ice cream brought this action in D.C. Superior Court challenging the labeling of a “chocolate caramel cheesecake ice cream” product as deceptive on the grounds that it was allegedly manufactured using cocoa powder rather than chocolate. She alleges that reasonable consumers would interpret usage of the word “chocolate” on the label to mean the product actually contains chocolate. In a rather snarky complaint (potentially because this plaintiff didn’t get her real chocolate fix), the plaintiff claims that to promote consumer understanding and comply with applicable regulatory requirements, the ice cream should have contained a declaration on the label and ingredient list indicating that it is “chocolate flavored.” While the plaintiff argues that the product label violates federal regulations, she brings this consumer protection action individually based on alleged violations of the District of Columbia’s Consumer Protection Procedures Act and allegations that the product label is likely to mislead a reasonable consumer. In addition to the flavor declaration, the plaintiff also challenges the net quantity of contents statement on the ice cream product. The complaint specifically takes issue with the allegedly
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