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

FOOD BEVERAGE D I G E S T MAY 2 0 2 1 | 3 New Lawsuits Filed Organic Flavors Not Enough to Bring Back Water’s Sparkle Kelly v. Whole Foods Market Group Inc. , No. 1:21-cv-03124 (S.D.N.Y. Apr. 11, 2021). A sour consumer has asserted a putative class action against an upscale grocery chain, alleging it overcharges consumers for its “Lemon Raspberry Italian Sparkling Mineral Water.” But the consumer’s tart attitude toward the refreshing drink is not because it consists of mineral water with just enough carbonation to give that satisfying, crisp finish. It’s not because the water is sourced from a boot-shaped country (famous for its cuisine, vistas, and, of course, water) that is over 4,000 miles from where the plaintiff filed the complaint. It’s not even because the product is certified “USDA Organic” and identifies “Organic Natural Flavors (Raspberry, Lemon)” among its ingredients. The actual reason, the plaintiff alleges, is far more insidious. Wielding pictures of lemons and raspberries and the words “Lemon Raspberry,” the defendant purportedly tricks consumers into believing an appreciable amount of lemon and raspberry is used for the water. The complaint claims there isn’t, nor does the water’s flavor come predominantly from lemons and raspberries. The plaintiffs seek to certify an eight-state class of consumers for violations of consumer protection laws, breach of warranty, fraud, negligent misrepresentation, and unjust enrichment. Cheese Louise! Boxed Mac and Cheese Accused of Containing Harmful Chemicals Franklin v. General Mills Inc ., No. 2:21-cv-01781 (E.D.N.Y. Apr. 1, 2021). Stuve v. The Kraft Heinz Company , No. 1:21-cv-01845 (N.D. Ill. Apr. 6, 2021). Lavalle v. General Mills Inc. , No. 7:21-cv-03103 (S.D.N.Y. Apr. 9, 2021). A trio of newly filed lawsuits takes aim at everyone’s favorite comfort food, the ubiquitous boxed macaroni and cheese. In lawsuits filed in the Eastern District of New York, Northern District of Illinois, and Southern District of NewYork, the plaintiffs allege that Annie’s and Kraft macaroni and cheese products fail to disclose that they contain, or are at risk of containing, allegedly dangerous phthalates. These phthalates purportedly enter the products from the product packaging and machinery used to make the products. The plaintiffs further contend that phthalates cause a wide range of health problems, from fertility issues to neurodevelopmental problems such as ADHD and anti-social behavior. The lawsuits are, in large part, based on a 2017 study conducted by the Coalition for Safer Food Processing and Packaging, a nonprofit consumer advocacy organization (although the plaintiffs do not explain why they waited nearly four years after this apparently bombshell study). The plaintiffs’ claims are premised on both alleged omissions and misrepresentations about the presence of phthalates (or the risk the products could contain phthalates) and marketing the products as healthy and wholesome. The plaintiffs seek to certify nationwide and state classes, asserting claims for violations of consumer protection statutes, fraud, breach of warranty, and unjust enrichment. “Naturally Flavored”Water Goes a Little Flat Gammino v. The Kroger Company , No. 5:21-cv-02933 (N.D. Cal. Apr. 22, 2021). Harking back to the more traditional “natural” lawsuits, a California consumer is seeking to certify a nationwide class for claims that a line of sparkling waters is false and deceptive. The fizzy waters represent they are “Naturally Flavored,” a claim the plaintiff believes is nothing but hot (carbonated) air. Instead, the complaint alleges, the waters contain the artificial flavoring ingredient dl-malic acid. Unlike its naturally occurring cousin (l-malic acid), dl-malic acid allegedly is produced in petrochemical plants and derived from tasty products like benzene and butane. But the plaintiff claims there’s more. The defendant grocer also purportedly conceals from consumers that its effervescent water line is artificial. Although the ingredients list discloses that the sparkling waters contain malic acid, it does not specify whether it is the naturally occurring l-malic or the artificially produced dl-malic acid. For this purported deception, the plaintiff seeks to certify a nationwide class for claims under various consumer protection laws, breach of warranty, fraud, and unjust enrichment, and injunctive relief. Pancakes That Are Protein-Packed? More Like Protein- Lacked! Hinkley v. Baker Mills Inc. , No. 2:21-cv-00221 (D. Utah Apr. 13, 2021). Seeking to increase their protein consumption, a group of “health conscious” consumers are challenging the protein content claims made by the manufacturers of Kodiak Cakes Buttermilk Flapjack and Waffle Mixes. The suit alleges that the flapjack and waffle mix falsely claims that the products contain more protein than it actually does. Based on amino acid content testing of the products, the plaintiffs allege that the pancake and waffle mix does not pack the advertised 14 grams of protein per serving but rather contains a measly 11.5 grams. Venturing into a nuanced chemistry class befitting gainz-seekers, the suit also claims that the protein used in flapjack and waffle mix packs less punch than higher-quality proteins. When the mix’s amino acid and protein content is adjusted by the “Protein Digestibility Corrected Amino Acid Score” (or the unhelpfully long acronym “PDCAAS”), the complaint claims that the products provide even less absorbable protein per serving. The plaintiffs seek to certify a 49 -state class for unjust enrichment and fraud and state classes for New York, Florida, and Illinois under their consumer protection laws. As we previously covered , the 50th state— California—is already at play in a separate putative class action brought by the same law firm and raising the same allegations.