Alston & Bird's Food & Beverage Digest | June 2021

FOOD BEVERAGE D I G E S T J U N E 2 0 2 1 | 3 New Lawsuits Filed Rum Rummers Cruise to State Court Alonzo v. William Grant & Sons Inc. , No. 155241/2021 (N.Y. Sup. Ct. May 28, 2021). Back in January 2021, we reported that Richard Alonzo filed his original complaint in New York federal court challenging that the defendant’s Flor de Cana rumwas deceptively labeled as “Artisanal,” “18,” and “Slow Aged” because it misleads consumers about the age of the product. Those statements are misleading because consumers expect rum, like other spirits, to be labeled using the age of the youngest spirit included in the finished product. But Flor de Cana rum is instead composed of spirits with an average age of 18. While the complaint recognizes that this doesn’t technically violate the statement of age regulations for spirits, it argues the labels are nevertheless misleading. This past May, the defendant sought to dismiss the case because the district court lacked subject-matter jurisdiction. Rather than respond to that defense, the plaintiff sought leave to amend his complaint and switched out the plaintiffs in the federal action. Just three days later, Sheehan & Associates filed the new state court lawsuit on behalf of Alonzo in NewYork state court (presumably to bypass the jurisdictional arguments at issue in the federal court case). Procedural maneuvering? Certainly. But the federal court allowed it. After the defendant alerted the federal court to these tactics, the court deemed Alonzo’s federal claims to have been voluntarily dismissed pursuant to Rule 41(a). A Bubbly Dispute over Flavored Water Oldrey v. Nestlé Waters North America Inc. , No. 7:21-cv-03885 (S.D.N.Y. May 2, 2021). A disgruntled hydration enthusiast has sued Nestlé over its sparkling water labeled as containing “a twist of raspberry [and] lime.” The plaintiff alleges that the beverage’s labeling misleads customers about the nature of the raspberry and lime ingredients. According to the plaintiff, “a twist of raspberry and lime” suggests a small amount of fruit ingredients “that otherwise might be unexpected.” Instead, the plaintiff claims, the beverage contains flavor compounds that imitate the taste of raspberries and limes with almost no fruit ingredients. The plaintiff claims that she paid more for the sparkling water than she would have had the product been correctly labeled, comparing the product to the less-expensive competitor Spindrift Lime Seltzer. The plaintiff brings claims on behalf of a proposed class for violations of NewYork’s consumer protection statute, breaches of express and implied warranties, negligent misrepresentation, fraud, and unjust enrichment. In a Tizzy over Iffy Labels Williams v. Molson Coors Beverage Company , No. 3:21-cv-50207 (N.D. Ill. May 22, 2021). As consumers enter the heart of summer, a refreshing hard seltzer seems to be the perfect reward for a hard day’s work at the beach, lake, or pool. Enter Vizzy Hard Seltzer. Not only does the beverage offer refreshing flavors like strawberry kiwi, blueberry pomegranate, pineapple mango, and black cherry lime, its label also discloses “with antioxidant Vitamin C from acerola superfruit.”What could be wrong with a drink tailor-made for summer? Quite a lot, according to a recent suit filed in Illinois federal court. The lawsuit comes on the heels of a March 15, 2021 letter sent by the Center for Science in the Public Interest to the Food and Drug Administration (FDA) and raises identical allegations as those in the letter. The suit first claims that the hard seltzer makes a prohibited nutrient content claim in violation of FDA regulations with the label “with antioxidant Vitamin C.” Second, the label references the superfruit acerola to misleadingly suggest that the alcoholic beverage is healthy. Third, the hard seltzer violates FDA policy against fortifying alcoholic beverages with nutrients. Finally, and as is the manner of Sheehan & Associates complaints, the suit challenges the representations of mango flavoring because the seltzers do not contain an appreciable amount of the fruit. The plaintiff seeks to certify an Illinois class for breach of warranty, misrepresentation, unjust enrichment, and Illinois consumer protection claims. Lawsuit Claims Protein Products Contain “Whey” Less Protein Than Advertised Lozano v. Bowmar Nutrition LLC , No. 2:21-cv-04296 (C.D. Cal. May 24, 2021). A lawsuit filed in California federal court alleges that whey-derived protein products contain “substantially less” protein than what is conveyed to consumers. According to laboratory testing of the products, each serving contains far less than the amount of protein represented on the nutritional facts label, and therefore, these variances are unlawful under federal law. The complaint also takes issuewith statements claiming the products are“high protein,”serve as “a healthy meal replacement with a range of amino acids to stimulate muscle growth,”and will “fill[] you up.” Based on these allegations, the complaint asserts putative class claims for unjust enrichment and violations of various states’ consumer protection laws. The complaint also seeks declaratory judgment, injunctive relief, compensatory and punitive damages, and attorneys’ fees and costs.