FOOD BEVERAGE D I G E S T NOVEMBER 2023 | 3 New Lawsuits Filed Can You Smell What Preservatives Are Cooking? Gershzon v. Zoa Energy LLC, No. 3:23-cv-05444 (N.D. Cal. Oct. 23, 2023). A California plaintiff filed suit against an up-and-coming energy drink brand over its preservative-free marketing. The plaintiff alleges that he was looking for a healthier alternative to the traditional energy drink and that he relied on packaging claims that the product has “0 Preservatives. 0 Artificial Flavors. 0 Synthetic Colors.” Despite these representations, the plaintiff alleges the product contains the preservative citric acid. The plaintiff contends that he paid a premium for the energy drink and would not have purchased it, or would have paid less, if he had known that it contained preservatives. The plaintiff brings claims on behalf of a nationwide class and California subclass for breach of express warranty and violations of various California consumer protection statutes. Candy’s “Clean Label” Criticized for Covering Up Lab-Created Chemicals Trammell v. KLN Enterprises Inc., No. 3:23-cv-01884 (S.D. Cal. Oct. 16, 2023). A candy-crushing consumer has alleged that his not-so-guilty pleasure may not be as innocent as he believed. The plaintiff—a student who seeks out naturally flavored candy in pursuit of a clean lifestyle—claims that a brand of licorice deceived him and a class of plaintiffs by advertising its “natural” berry flavor. While the label evokes flavors derived from sun-kissed fields, the plaintiff’s alleged testing reveals the synthetic flavoring compound DL-malic acid, which the plaintiff alleges is not found on any known berry farm. His complaint brings a claim for violation of California’s Consumers Legal Remedies Act for failure to reveal the licorice’s synthetic flavoring, as well as claims for unjust enrichment and for breach of express warranty. Plaintiff Zeroes In on Monkfruit Sweetener’s Labeling Claims Cohen v. Saraya USA Inc., No. 2:23-cv-08079 (E.D.N.Y. Oct. 30, 2023). A putative class action filed in New York federal court accuses the defendant of falsely advertising its “Lakanto Monkfruit Sweetener” product as having zero net carbs and zero calories. According to the complaint, neither of these representations is true because the products are marketed using “unreasonably small serving sizes” and do not confer any of the purported nutritional and health benefits to consumers. Based on these allegations, the plaintiff seeks to represent a class of all New York residents who purchased the products within the statute of limitations period. The complaint asserts putative class claims for violation of New York’s statutory consumer protection laws and seeks damages, injunctive relief, and attorneys’ fees and costs, among other relief. Butter Up! Davis v. Schwan’s Consumer Brands Inc., No. 1:23-cv-08866 (S.D.N.Y. Oct. 9, 2023). Despite warnings from a growing number of federal judges, plaintiffs’attorney Spencer Sheehan continues to keep himself occu-pied, filing putative class actions against a host of food and beverage manufacturers. This time, Sheehan takes aim at the manufacturer of Mrs. Smith’s brand of frozen apple pies. The complaint alleges the product’s labeling is false and misleading because its claims that the pies have a “Flaky Crust” and are “Made with Real Butter” mislead consumers into thinking butter would be the predominant ingredient in the pie. Despite those labeling claims, the complaint alleges that the actual amount of butter in the pie is“negligible or de minimis”because the ingredient“Butter”is listed after“Palm Oil”on the product’s ingredient list. The complaint also alleges that by using the combined ingredient name “Shortening Butter Blend” for the combination of palm oil and butter ingredients and listing the combined ingredient name first, the manufacturer has misled consumers into thinking there is more butter in the pie than there is palm oil. The complaint naturally alleges that consumers value butter over its alternatives and that had they known the truth, they would not have purchased, or would not have paid as much for, the frozen desserts. Based on those allegations, the complaint asserts violations of New York’s consumer protection laws, fraud, and unjust enrichment. Consumer Says, “No Honey? Not Funny.” Tobin v. The Procter & Gamble Co., No. 4:23-cv-05061 (N.D. Cal. Oct. 3, 2023). Cold and flu season is in full swing, and honey is all the rage, according to a consumer who brought a putative class action for alleged lack of honey in liquid medicine products he purchased. The complaint alleges the products’ label claims, “MADE WITH REAL HONEY” and “FLAVORED WITH REAL HONEY,” in addition to its placement below the claim “COATS AND SOOTHES” were false and misleading because the products either do not contain honey or are made with “such an insignificant amount of honey that it does not ‘COAT and SOOTHE’ or provide real honey flavor.” Instead, the products allegedly contain artificial flavors, sweeteners, and additives that“mimic”the taste of real honey. The plaintiff alleges that honey provides nutritional benefits and is promoted as the “superior, natural treatment for coughs and colds,” and that he would not have purchased the products or would have paid less for them if he had known the truth. As the adage goes: No honey, no money. The plaintiff seeks to represent a California class, bringing claims for violation of California’s consumer protection laws, breach of express warranty, and quasi contract.
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