In the lawsuit*, originally filed in September 2014 vs Johnson & Johnson and subsidiary McNeil Nutritionals, plaintiff Lorraine Viggiano argued that phrases such as ‘100% Natural’ and ‘Made From Monk Fruit’ coupled with images of monk fruit false implied that Nectresse was primarily composed of monk fruit.
Plaintiff: ‘No reasonable consumer would consider Nectresse to be a natural product’
In fact, its main ingredient is erythritol, a zero-calorie bulk sweetener, she said. And while erythritol is found naturally in fruits and vegetables, it is typically produced commercially via chemically extracting starch from corn, converting the starch to glucose via enzymatic hydrolysis, fermenting the glucose using yeast, and then sterilizing filtering, and purifying the fermentation broth to produce erythritol crystals, she claimed.
“This process is not the same process that is used in nature to produce the erythritol that is found in many vegetables and fruit… and McNeil actively conceals this material fact from consumers… McNeil’s representation that erythritol ‘is a natural sweetener, produced by natural processes’ and that it is ‘found in many vegetables and fruits’ is misleading.”
McNeil also fails to tell consumers that “just to produce the monk fruit extract, its supplier adds ethanol and other chemical resins in a patented multi-step process to purify it”, she argued.
“In short, Nectresse is not made primarily from the monk fruit plant, it is predominantly made of erythritol, and contains only a minute quantity of monk fruit-derived Magou-V (not natural crude monk fruit); the erythritol used is not natural, it is synthetic; and, the monk fruit-derived Magou-V is harshly purified through chemical processes. As a result, no reasonable consumer would consider Nectresse to be a natural product.”
Judge: The Plaintiff is not arguing that the public believes sweeteners grow on trees
In a June 12 order on the case, U.S. District Judge Dolly Gee allowed all of the claims in the lawsuit to proceed except the breach of implied warranty claim.
She added: “Viggiano is not asserting… that the public believes sweeteners grow on trees. Instead, Viggiano has alleged sufficient facts to show that members of the public are likely to be deceived by Defendants’ use of phrases such as ‘100% Natural’ and natural imagery into believing that Nectresse is derived entirely from ingredients found in nature when, in fact, 83% of it is comprised of a synthetically created ingredient…
“This is so notwithstanding the fact that the ingredients of Nectresse are fully disclosed on its label. Accordingly, Defendants’ motion to dismiss Viggiano’s UCL [Unfair Competition Law], CLRA [Consumer Legal Remedies Act], and FAL [False Advertising Law] claims is denied.”
When are natural sweeteners not ‘natural’?
McNeil Nutritionals is one of several food companies that has come under fire over all-natural claims on products made from high potency natural sweeteners in combination with erythritol.
For example, Cargill has agreed to pay up to $6.1m to settle lawsuits with a series of plaintiffs alleging it misled shoppers by marketing its Truvia consumer products (which contain stevia extract Reb-A and erythritol) as ‘natural’.
Merisant and Whole Earth Sweeteners also agreed to pay $1.65m to settle a similar case over Pure Via stevia-based sweeteners (Angel Aguiar v Merisant Co) and add an asterisk on the packaging directing consumers to a website.
Johnson & Johnson: Nectresse did not meet business expectations
Peggy Ballman Director, Communications, at J&J Consumer Group told FoodNavigator-USA that the company couldn't comment on the litigation, but confirmed Nectresse had been discontinued last year because it "did not meet business expectations".
*The case is Lorraine Viggiano et al v Johnson & Johnson et al No. 2:14-cv-07250, filed in the Central District of California.