FOOD BEVERAGE D I G E S T NOVEMBER 2023 | 5 Champagne Problems West v. Molson Coors Beverage Company USA, No. 1:23-cv-07547 (E.D.N.Y. Oct. 10, 2023). It’s not real champagne unless it comes from the Champagne region of France, and it’s not a real Mimosa Hard Seltzer unless it comes from … the Champagne region of France? At least, that’s what one plaintiff’s new complaint wants you to believe. The plaintiff alleges that the defendant’s Vizzy brand Mimosa Hard Seltzer misleads consumers into believing that it is made with real champagne (like the classic mimosa), when in reality its bubbles come from sparkling water and its alcohol is from fermented sugar. The plaintiff brings claims for a violation of New York’s General Business Law, breach of express warranty, and unjust enrichment, and seeks to represent a class of New York purchasers. For a case pending before an Article III judge, the complaint is surprisingly cavalier. It begins with a historically dubious anecdote crediting Napoleon Bonaparte with the invention of the mimosa—complete with picture of a fake Napoleon (Joaquin Phoenix) from the recent eponymous movie. Following the Napoleon Bona-not, the complaint gives a gratuitous linguistics lesson on the origins of the word brunch (“a portmanteau of breakfast and lunch,” for the curious) to pop the cork on the defendant’s Mimosa Hard Seltzer. Recently, a New York federal judge found that similar allegations against a margarita hard seltzer had decidedly lost their fizz. We’ll be watching this case closely to see if this case is similarly exiled to the annals of history. Consumer Claims Protein Drinks Had Plenty He Didn’t Need Julian v. Only What You Need Inc., No. 7:23-cv-09522 (S.D.N.Y. Oct. 30, 2023). A New York consumer is suing a supplement company that manufactures and sells protein shakes and powders that are marketed as healthy and claim they contain “only what you need,” and “nothing you don’t,” because the purportedly healthy drinks allegedly contain plenty that consumers do not need—or even want—unsafe levels of per- and polyfluoroalkyl substances, a.k.a. “PFAS” or “forever chemicals.” The plaintiff claims that when he made his purchases of the products, he saw and believed that the products were healthy based on the fact that the products were marketed as containing “only what you need,” because “what’s inside matters.”But according to the plaintiff, those claims were all hooey, because laboratory testing has allegedly shown the likely presence of PFAS, and “no reasonable consumer would expect” a product marketed as healthy to contain dangerous PFAS chemicals. Based on those allegations, the plaintiff claims he suffered and continues to suffer economic injuries as a result of his purchases, and that had the defendant disclosed on the label that the products contained PFAS chemicals, he would not have purchased the products or would have paid less for them. The suit asserts claims under New York’s consumer protection statutes, breaches of warranty, and unjust enrichment. Is the Juice Worth the Squeeze? Bell v. PepsiCo Inc., No. 7:23-cv-08600 (S.D.N.Y. Sept. 29, 2023). A New York consumer juice could not take it anymore and filed a class action over a large beverage manufacturer’s “100% Juice Blend” juices. The complaint alleges that the labels of the relevant juice products contain representations “that they: (1) are made from a ‘100% Juice Blend’ and (2) contain ’No Preservatives.’” The complaint alleges that despite those representations, the juice products all share a common ingredient: “ascorbic acid—a well-documented synthetic ingredient.” Ascorbic acid is also known as Vitamin C, and while the complaint acknowledges that the food additive could be derived from natural sources, it suggests that all commercial ascorbic acid is synthetically derived. Additionally, the complaint cites FDA regulations to allege that the inclusion of ascorbic acid in the relevant products has a preservative effect on the juice component of the products. The complaint juxtaposes the beverage manufacturer’s product labels against its competitors’ product labels for similar products that contain“100% Juice”claims; the competitor products’ labels contain disclosures that the products contain additional ingredients. The plaintiff alleges that he relied on the beverage manufacturer’s representations and that he would not have sipped on the relevant products had he known the representations were (allegedly) not true. The plaintiff seeks to certify a nationwide class to pursue claims under consumer protection statutes of the class states and also seeks to certify a California subclass to pursue claims under California’s false advertising law, Consumers Legal Remedies Act, and Unfair Competition Law. Preservative-Free Claims Are Getting Juicy Bullock v. Ocean Spray Cranberries Inc., No. 1:23-cv-12557 (D. Mass. Oct. 27, 2023). Wright v. Ocean Spray Cranberries Inc., No. 3:23-cv-05627 (N.D. Cal. Oct. 31, 2023). A pair of consumers, sour over the defendant’s “No Preservatives” claims on certain juice products, filed class actions in Massachusetts and California courts, claiming that they were misled by the product’s labeling. The Massachusetts consumer claimed she relied on the beverage manufacturer’s allegedly “false, misleading, and deceptive marketing of the Product containing ‘NO ARTIFICIAL FLAVORS OR PRESERVATIVES.’”The complaint alleges that the cited products contain ascorbic acid, commonly known as Vitamin C. The complaint primarily cites FDA and USDA regulations and statements to claim that the ascorbic acid contained in the beverage manufacturer’s products is (allegedly) a chemical preservative. The complaint alleges violations of New York’s General Business Law, Massachusetts Unfair and Deceptive Business Practices Act, breach of express warranty, and unjust enrichment. Just four days after the defendant was hit with the Massachusetts suit, a California consumer filed a similar class action complaint challenging the “No Preservatives” claim on two specific juice products. The complaint alleges that the claims are false because “the Products are made with citric acid.” Despite acknowledging that citric acid is found naturally in certain citrus fruits, the complaint alleges that many food manufacturers use a form of citric acid
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