Alston & Bird's Food & Beverage Digest, October 2021

FOOD BEVERAGE D I G E S T O C TO B E R 2 0 2 1 | 5 Consumer Dons Yellow Cellophane, Casts Aside Rose- Colored Glasses, in Sparkling Water Spat Angeles v. Nestlé USA Inc. , No. 1:21-cv-07255 (S.D.N.Y. Sept. 10, 2021). A consumer—represented by plaintiff’s lawyer Spencer Sheehan—claims that she is seeing red because the defendant’s sparkling water has a distinctly yellow tint about it. In a putative class action filed in New York federal court, the consumer claims that the lemon-flavored sparkling water—part of a brand of Italian sparkling waters—misrepresents that it contains an appreciable amount of lemon that imparts the water’s zesty, lemony flavor. Yet the primary feature that left the consumer feeling sour is the water’s yellow cellophane wrapping, which allegedly suggests that lemons are used in the product. As is becoming increasingly the rage in Sheehan’s lawsuits, in an effort to make the point, the complaint claims that history is on the consumer’s side, this time in the form of a 1933 traveling exhibit about cellophane-wrapped noodles. The consumer also alleges that the yellow cellophane obscures a disclosure at the bottom of the water that the product is “flavored mineral water with natural CO2 added.” The consumer seeks to certify New York and consumer fraud multistate classes for violation of NewYork’s consumer protection laws, state consumer fraud acts, fraud, breach of warranty, negligent misrepresentation, and unjust enrichment. Plaintiff Claims Mixed Berry Breakfast Bars Are All Mixed Up Harris v. Kashi Sales LLC , No. 3:21-cv-50376 (N.D. Ill. Aug. 16, 2021). According to a putative class action complaint filed in Illinois federal court, the labeling on the defendant’s “Mixed Berry” Soft Baked Breakfast Bars is false and misleading because it gives consumers the false impression that the bars’ fruit filling contains a greater amount of mixed berries and honey than it actually does. The complaint takes issue with a host of representations on the products’ packaging, including the statements “Mixed Berry,” “3g Fiber*,”“Made withWildflower Honey, “10gWhole Grains,”“Non-GMO Project Verified,”“Simply Delicious,” and “Delightfully Nutritious,” along with images depicting a variety of berries and oats. The complaint alleges, however, that in reality the breakfast bars’ fruit filling contains more pears and apples than berries and derives its sweetness mostly from sugar. Among other things, the suit complains that it is unlawful to label the product as “Mixed Berry” when berries are not its characterizing ingredients. Based on these allegations, the complaint seeks to certify classes under various states’ consumer protection laws and asserts claims for breach of warranties, negligent misrepresentation, fraud, and unjust enrichment. Lawsuit Alleges “0g Total Sugars” Scheme to Reel in Unwary Consumers Cleveland v. Campbell Soup Company , No. 3:21-cv-06002 (N.D. Cal. Aug. 3, 2021). A lawsuit filed in the Northern District of California alleges that the makers of Goldfish products deceptively represent that the smiling, golden fish snacks are healthy. Relying on predicate violations of FDA regulations, the plaintiffs maintain that the defendants label their products as containing“0g Sugars”but fail to include any disclosure that the Goldfish are not a low-calorie food. These purported misrepresentations, the plaintiffs claim, deceived them into purchasing Goldfish or paying more than they otherwise would have. The plaintiffs are angling to represent a nationwide class (along with California and New York subclasses) of individuals who bought the Goldfish with the “0g Sugars” label. Unlike their fishy counterparts, the defendants are not smiling. They filed a motion to dismiss on August 31, 2021, arguing the district court should not be baited by the plaintiffs’ allegations. Complaint Pitches New Name for Hard Seltzer for Flat Fruit Claims (Possibly) Galvez v. The Boston Beer Company , No. 3:21-cv-01508 (S.D. Cal. Aug. 25, 2021). For once, plaintiffs represented by counsel not named Spencer Sheehan are challenging a product’s flavor and ingredient claims. Led by a New York and California law firm tag team, two consumers have taken aim at an entire line of fruit-flavored hard seltzers, asserting the seltzers falsely suggest that they contain real fruit. The suit claims that the seltzers contain no fruit ingredients but rather are flavored only with “lab synthesized ingredients described as ‘natural flavors.’”The complaint also alleges that the seltzers violate FDA regulations because their front labels do not disclose they are “flavored products,” even though they identify and use realistic pictures of their characterizing fruit flavors. The plaintiffs seek to certify nationwide, California, and New York classes for breach of warranty, unjust enrichment, and violation of the California and New York consumer protection laws.