In a lawsuit* filed in California on March 23 vs Health-Ade LLC, plaintiff Lynette Gonzalez says Health-Ade labels list sugar levels of 2-4g per 8oz serving.
However, “testing has consistently demonstrated that the Health-Ade Kombucha beverages actually each contain between 11 and 13 grams of sugars per serving," says the complaint. "This translates to between four and six times more sugar than is stated on the products’ label.”
[According to the Health-Ade website most SKUs are listed as containing 5-7g sugar, which would mean that if accurate, the sugar levels alleged in the lawsuit - 11-13g grams - are closer to twice the stated sugar level, rather than 4-6 times higher, although it's not clear if the labels have changed recently or where the law firm sourced its data from.]
Gonzalez, who is represented by law firm Bradley Grombacher LLP, alleges violations of California’s false advertising and consumer protection laws, adding: “Plaintiffs would not have purchased Defendant’s kombucha beverage had they known the truth.”
The complaint comes hot on the heels of a lawsuit** filed on March 6 alleging that Health Ade kombucha products “greatly understate” their sugar content, and exceed the 0.5% abv threshold (above which they are classified as an alcoholic beverage by the Alcohol and Tobacco Tax and Trade Bureau and should be taxed and labeled accordingly).
Two additional consumer class action lawsuits*** have been dismissed, while one competitor suit**** is still proceeding through the courts.
Health-Ade told us: "Health-Ade is unable to comment on pending litigation."
Attorney: The industry is going to have to figure this out
Defense attorneys contacted by FoodNavigator-USA said plaintiffs’ attorneys were increasingly eyeing up the kombucha category, given the lack of a clear definition of what kombucha is, a lack of clarity over ‘raw’ claims, concern over sugar and alcohol levels, and confusion over probiotic claims [Brew Dr was recently challenged over its probiotic claims but says it stands by them].
One legal source told us: "We've had clients that have gotten into trouble in this category and it's something the industry is going to have to figure out.”
One industry source added: “You get a feeling that some companies are stating the sugar content at the end of the shelf life [where it will be the lowest, as more of the sugar has been converted to alcohol] and the alcohol content at the start of the shelf life [where it will be the lowest, as continued fermentation that turns sugar into alcohol can take place in the bottle].”
"Due to the nature of kombucha and how it’s made, I don’t see this issue going away until manufacturers begin adopting different methods of production that can better account for alcohol and sugar levels. With any fermentable product, you’re always going to walk a line between how much sugar remains unconsumed by the yeast, and how much alcohol is produced a byproduct.
It will be important for kombucha brewers to embrace manufacturing and bottle techniques in adding carbonation and bottling processes to ensure consistency and stability. Use of spinning cone technology in the distillation process will certainly help in lowering alcohol levels, but care must also be taken during carbonation, bottling and storage. Many craft beer brewers use chilled ‘brite’ tanks and cold storage helps ensure that further fermentation doesn’t occur. It’s also important to maintain close control over post-bottling storage and shipping conditions to make sure product temperatures are kept low enough to stop further fermentation.
I also wonder whether on-package disclaimers about inconsistent sugar/alcohol content might help combat class action claims. It’s harder to argue that a consumer was deceived about sugar/alcohol content if there is a prominent disclaimer that sugar and/or alcohol levels may vary. It doesn’t solve the underlying problem, but might provide an argument to defendants in cases alleging consumer deception.
Like with any newly popularized product, there will be growing pains as manufacturers figure out the contours of the business and adopt more consistent manufacturing processes. Until then, I’m afraid we haven’t seen the last of these Kombucha class actions."
Ryan Kaiser, attorney, Amin Talati Upadhye
"Legal risk cannot be ignored, but neither can reputational harm, and a potential loss of consumer trust due to less than straightforward dialogue with the consumer cannot be underestimated or disregarded. Most companies readily admit that sugar is added into their products during the fermentation process, but they should then explain how it is necessary – i.e., healthy probiotic bacteria feed on that sugar, which causes fermentation, which creates more beneficial bacteria.
"Then, they need to follow up that explanation with a truthful statement about how much sugar remains after fermentation when the product is in the bottle.
"Quality assurance and quality control methodologies must be challenged and replaced if they are not capable of determining the sugar and alcohol levels with a reasonable degree of certainty. If manufacturers cannot or do not want to implement processes that ensure that the alcohol by volume is no more than 0.5%, then they should pursue a state beer or wine license and manufacture their product as a low ABV, but nonetheless, alcoholic beverage."
William C. Acevedo, partner, Wendel, Rosen, Black & Dean LLP
PepsiCo exec: 'I am really really confident that our sugar and alcohol levels are as we state them on pack at the end of the shelf life'
Speaking to FoodNavigator-USA at the Natural Products expo West trade show earlier this month, Seth Kaufman, head of PepsiCo's North American Nutrition business, said he was "really really confident" that sugar and alcohol levels in KeVita Master Brew Kombucha (now part of PepsiCo's portfolio) were as stated on pack.
He added: “There’s a perception in the trade about what an authentic kombucha is. Not everyone pasteurizes at the same point in the process, but based on our process, I am 100% confident that we have a legitimate kombucha product in the marketplace and I feel really good about KeVita’s products not only being true kombucha, but also having the healthy bacteria that we say we have, right up to the end of the shelf life.
"I am also really really confident that our sugar and alcohol levels are as we state them on pack at the end of the shelf life."
What is kombucha?
Kombucha is typically defined as a fermented tea, whereby firms brew tea, add sugar, and then ferment the mixture with a kombucha culture or 'SCOBY' (symbiotic culture of bacteria and yeast), which creates, among other things, carbon dioxide (explaining why kombucha is a bit fizzy), alcohol, acetic acid (explaining the slightly sour, vinegary taste) and other organic acids such as lactic acid, propionic acid, glucuronic acid and gluconic acid.
Individual brands may also add herbs, adaptogens such as reishi and ashwaganda, botanicals, fruit juice concentrates, and other ingredients, before or after the fermentation.
The devil, however, is in the detail, with some companies making a virtue of the fact that their kombucha is 'raw' (a term not clearly defined in law), and others heat pasteurizing their products to create a consistent product with an alcohol level below 0.5% abv and adding in well-characterized strains of probiotics afterwards, for example.
Some firms use micro-filtration techniques to filter out some yeast (to stop the product continuing to ferment in the bottle and increasing the alcohol content), while others (Brew Dr Kombucha, Aqua ViTea) distill off alcohol after the fermentation without the use of excessive heat.
Some brands such as Suja use a low heat, which they claim kills off residual yeast, but does not destroy beneficial bacteria remaining in the brew post fermentation.
Not everyone is getting this right
Speaking to FoodNavigator-USA at the KombuchaKon event in Long Beach last month, one industry source said: "Where people are often getting into trouble is when they are back-sweetening products [post fermentation] in order to appeal to a more mainstream consumer base, and the fermentation is also continuing in the bottle.
"There are lots of ways to maintain a flavor/sweetening profile that's acceptable while at the same time controlling the alcohol level, but not everyone is getting this right."
KBI: killing off the yeast impacts the nutritional profile of kombucha
Similarly, heat is not necessarily the enemy that some purists claim, claimed another analytical lab source at the event: "If you heat up to around 100 or even 130 degrees fahrenheit or so for 30 seconds, you can selectively remove 99% of the yeast without damaging the beneficial bacteria you might want to keep in the product, for example.
"Or you can filter out some yeast, or add micro-organisms back in that won't ferment and increase the alcohol level. You can also pick ingredients that add to the flavor and sweetness but are not fermentable, or not as fermentable."
However, killing off yeast - even if bacteria is not impacted - is not ideal, argued Hannah Crum, co-founder at non-profit trade association Kombucha Brewers International (KBI): "The yeast contain nutrition in living form - notably B vitamins, think nutritional yeast - so heat killing off the yeast does impact the nutritional profile of the product."
KBI: There have definitely been some growing pains in the industry
KBI members are deploying a variety of tactics to control alcohol, said board member Zane Adams (from Buchi Kombucha), although the KBI has been encouraging members of Congress to back a bill (the Kombucha Act) that would raise the threshold to 1.25%.
"There have definitely been some growing pains in the industry [over the sugar/alcohol issue]," he said. "And we've been working with the TTB [Alcohol and Tobacco Tax and Trade Bureau - which took a close interest in the category in 2010, prompting a high-profile withdrawal of kombucha products in Whole Foods] and the AOAC to discuss ethanol [alcohol] testing protocols."
Whether 0.5% is a reasonable, or outdated and draconian, threshold, depends on your perspective, but as things stand today, said experts at analytical testing labs exhibiting at KombuchaKon, if you were to pull a random selection of kombucha products off the shelf towards the end of their shelf life at many retailers, you would likely find multiple products with an alcohol content above 0.5%.
* The case is Lynette Gonzalez et al vs Health-Ade LLC 5:18-cv-01836.
**The case is Gabriela Bayol et al vs Health-Ade LLC and Whole Foods Market California Inc 4:18-cv-01462. Bayol is represented by Bursor & Fisher P.A.
*** Hood v. Health-Ade, LLC, 115-cv-286909 (Santa Clara); Samet v. Health-Ade, LLC, 115-cv-286907 (Santa Clara).
****Tortilla Factory, LLC sued Health-Ade alleging violations of the Lanham Act (15 U.S.C. § 1125) on December 19, 2017.