FOOD BEVERAGE D I G E S T MAY 2 0 2 3 | 5 Plaintiff Raises a Ruckus over Energy Drinks Chauca v. Rowdy Beverage Inc., No. 3:23-cv-00730 (S.D. Cal. Apr. 20, 2023). A New York plaintiff alleges that the defendant’s energy drinks are falsely labeled with a “No Preservatives” statement, despite purportedly listing citric acid and ascorbic acid as ingredients. The plaintiff avers that the statement is misleading, even if the defendant intended the citric acid and ascorbic acid ingredients to impart flavor to the drink, rather than to act as a preservative. The plaintiff seeks to represent a nationwide class of consumers as well as a New York subclass. The complaint asserts a multitude of claims, including violation of New York’s General Business Law, violation of various state consumer protection statutes, breach of express warranty, unjust enrichment, negligent misrepresentation, and fraud. Stay tuned to find out whether the plaintiff’s buzz can carry him all the way. Goodness Gracious, No Balls of Fire? Pizzaro v. Sazerac Company Inc., No. 7:23-cv-02751 (S.D.N.Y. Apr. 2, 2023). Spencer Sheehan is back to put a new gloss on the deluge of cases filed against a defendant liquor distributor for alleged false advertising. And this time, he’s intent onmaking amountain out of a mini. Readers of this Digest are likely familiar with a recent line of complaints alleging that the defendant’s Fireball Cinnamon product intentionally misleads consumers. The crux of the previous allegations was that the Fireball Cinnamon product sported a nearly identical label to the defendant’s Fireball Cinnamon Whisky product, but the former was a flavored malt beverage while the latter was a traditional distilled spirit. Additionally, earlier plaintiffs have alleged that the product’s label is deceptive because it reads “natural whisky & other flavors”while a more careful description might be “natural whisky flavors and other flavors.” While this complaint borrows heavily from those themes, the specific claim at issue here is that the defendant’s 50 mL “mini” bottle is false and misleading. While the plaintiff refers to the product’s labeling, she also relies in part on the fact that consumers are conditioned to think that 50 mL bottles contain liquor, and she alleges that the defendant intentionally manipulated that belief to drive sales of its product. The plaintiff is a New York resident seeking to represent a statewide class for alleged violations of New York’s General Business Law, breaches of express and implied warranty, fraud, and unjust enrichment. If you’re interested in 13 paragraphs of traditional Sheehan prose describing different products entirely; tweets from “[o]ne Virginian”; citations to unnamed“sources”; or product reviews from an alleged consumer lamenting the lack of that “great ball of fire traversing your neck and setting your stomach on fire,” I’d suggest you read this complaint for yourself. Can’t Catch a Fast Break Zielinski v. Sazerac Company Inc., No. 1:23-cv-00305 (W.D.N.Y. Apr. 5, 2023). The Heat is rising in New York, and we’re not just talking about the recent triumph in the Eastern Conference Semifinals. A defendant liquor distributor faces yet another follow-on suit alleging that the labeling on its Fireball Cinnamon flavored malt beverage product intentionally misleads consumers into believing that they are purchasing the defendant’s flagship Fireball Cinnamon Whisky product. Like a growing number of plaintiffs across the county, the plaintiff in this case alleges that the two products are nearly identical in appearance and branding, but the malt beverage product (Fireball Cinnamon) contains only about half as much alcohol as the distilled spirit product (Fireball Cinnamon Whisky). This complaint differs in one small respect, however, in that it attempts to establish that the defendant knew that its product would confuse consumers by including a screenshot of the defendant’s website’s FAQ page. In bold letters, the question asks, “How can I tell the difference between Fireball Cinnamon and Fireball Whisky Products?” Whether the court views this as an acknowledgement of the alleged deception or an attempt to avoid it, the outcome of the case might provide some guidance on whether acknowledging similarities is a sound legal approach. The New York plaintiff brings claims in his individual and representative capacity and will attempt to establish nationwide and statewide classes. The causes of action include alleged violations of NewYork’s General Business Law, fraud, fraudulent omission, unjust enrichment, and breach of express and implied warranty. “I Want (Healthy) Candy!” Porter v. HealthSmart Foods Inc., No. 23-CIV-01531 (Cal. Super. Ct. Apr. 6, 2023). An Indiana-based candy company faces a lawsuit filed in California by a health-conscious plaintiff who alleges that the company’s candy products are fraudulently and unlawfully marketed in a campaign designed to deceive consumers. According to the complaint, the defendant’s candy—advertised under names like “HealthSmart” and “Sweet Nothings”— falsely suggest that the candy is healthy. The plaintiff has three major gripes with the candy. First, she claims that the defendant displays a false and misleading serving size on the products to deceive consumers into believing that the candy has less fat and fewer calories than they do. The plaintiff also alleges that the defendant misrepresents the candy’s Weight Watchers Smart Points values on the labels, further misleading consumers into believing that based on the points values, the defendant’s candy is comparable to consuming fruits and vegetables. Finally, the plaintiff alleges that the defendant’s online marketing misrepresents the products as being “healthy nutrition,”“all natural,” and “great for all diets,” despite purportedly containing artificial and synthetic ingredients and despite manipulating the serving sizes to artificially inflate the candy’s nutritional value. The plaintiff’s claims include violations of California state business law, including unfair business practices, false advertising, and common-law claims of fraud and negligent misrepresentation.
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