The lawsuit*, filed in California, raises many of the same questions as a recently dismissed case vs Twinings North America (which describes its teas as a ‘natural source of antioxidants’), specifically: Does simply stating that your products contain antioxidants amount to a nutrient content claim, even if you don’t state or imply they are a good or excellent source of antioxidants?
And does the word 'powerful' make any difference?
Is ‘powerful antioxidants’ an implied nutrient content claim?
When it comes to antioxidant nutrient content claims, the rules are clear, argue the plaintiffs in their March 11 court filing against GT's brand owner Millennium Products Inc. You can only make them on products containing a meaningful amount of nutrients with recognized antioxidant properties such as vitamin C and E for which a reference daily intake (RDI) has been established.
For example, to be a 'good source of antioxidants’ a product must contain at least 10% of the RDI for the antioxidant in question.
And while each bottle of GT’s Kombucha contains 100mg of EGCG (Epigallocatechin gallate, a polyphenol in tea with recognized antioxidant properties), there is no established RDI for EGCG, so you can’t make nutrient content claims about it, argue the plaintiffs.
In fact, they allege, GT’s brand owner Millennium Products Inc “has plastered misleading antioxidant messaging on every side of its GT’s Kombucha and Synergy beverage labels”, although they “do not have even a single nutrient that the FDA recognizes and approves of for labeling statements using the term ‘antioxidant’.”
While GT does not explicitly state that its beverages are a good source of antioxidants, its phrase, “With a unique blend of proprietary probiotics and powerful antioxidants” implies that they contain a meaningful amount, and therefore strays into the territory of nutrient content claims (which come with strict conditions of use), allege the plaintiffs.
“Tea antioxidants, like EGCG, are not antioxidant nutrients… Specifically, by law, Millennium must disclose… precisely which nutrients have antioxidant properties. Further, each of these nutrients must have established RDI standards set by the FDA... GT’s Kombucha Beverages claim to contain a ‘unique blend’ of ‘powerful antioxidants’ but do not contain even a single antioxidant nutrient with an established RDI.”
FDA: An antioxidant claim is a nutrient content claim only if the level of antioxidants is described
But has GT really strayed into the territory of nutrient content claims?
In a 2008 FDA guidance document, for example, when asked if an antioxidant claim is automatically a nutrient content claim, the agency says yes, but only if the level of antioxidants is described: “A claim that describes the level of antioxidant nutrients present in a food is a nutrient content claim and may be used on the label or in the labeling of a food when the conditions of use in the regulation are met.”
Arkansas US district judge Timothy L Brooksalso made this distinction when he recently dismissed a case against Twinings North America on the grounds that ‘a natural source of antioxidants’ was NOT an implied nutrient content claim because it did not state or imply the level of antioxidants.
However, in a warning letter sent to CAW Industries, Inc in 2012, the FDA noted that the term 'powerful' changed things. It added: "The claim 'very powerful antioxidant' as used in your labeling is an unauthorized nutrient content claim. The term “very powerful” characterizes the level of antioxidant nutrients in your product, and therefore, this claim is a nutrient content claim."
Attorney: Manufacturers need be careful before making any antioxidant claims
So what do legal experts think? Are the rules on antioxidant claims crystal clear or is there room for debate?
David Biderman, a partner in Perkins Coie’s Consumer Class Action Defense practice, told FoodNavigator-USA:
“This lawsuit is now the second which tells us that manufacturers need be careful before making any antioxidant claims. The allegations are far more specific and detailed than in Twinings case and rely not only on a suggestion that the level of antioxidants is misleading but on a claimed violation of FDA labeling regulations.
“Here the antioxidant content was apparently listed on the Nutrition Facts panel, which gives the plaintiff a hook for alleging violations of FDA regulations. This is an additional caution light for manufacturers to exercise care in making antioxidant claims.”
Millennium Products: The food and beverage industry is under attack
Millennium Products Inc told FoodNavigator-USA that it would vigorously defend itself against the "meritless" lawsuit, adding: "More than ever the food and beverage industry is under attack by litigious individuals trying to use the system for their meritless claims.
"This case is no exception which is evident by the series of identical claims directed at other very respected companies. We will address the allegations accordingly and remain committed to making high quality products that our consumers expect and deserve."
*The case is Jonathan Retta, Kirsten Schofield, and Jessica Manire et al vs Millennium Products, Inc 2:15-cv-01801 filed on March 11 in the Central District of California.
The plaintiffs allege violations of the California Consumer Legal Remedies Act, Civil Code §§ 1750, et seq., Unfair Competition Law, Bus. & Prof. Code §§ 17200, et seq., False Advertising Law, Bus. & Prof. Code §§ 17500, et seq., and New York’s Deceptive and Unfair Trade Practices Act, New York General Business Law § 349.