The complaint,* filed in California on April 19, and the latest in a series of such cases** filed against high profile brands (Campbell Soup, Kellogg’s, Frito-Lay) by the same law office, homes in on the source and function of malic acid, a food additive commonly used as an acidulant and to add tartness.
While malic acid [L-malic acid] occurs naturally in some fruits, the version Bai Brands is using in its Antioxidant fusion, Cocofusion, Bai Bubbles and Supertea beverages is d-l malic acid, a “synthetic industrial chemical called d-l-malic acid in the form of a racemic mixture of d- and l-isomers to flavor the products and make them taste like fresh fruit,” alleges the complaint, which argues that the beverages should therefore be described as ‘artificially flavored.'
“This ‘malic acid’ is not naturally-occurring but is in fact manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts.”
The complaint adds: “Defendant’s packaging, labeling, and advertising scheme is intended to give consumers the impression that they are buying a premium, all-natural product with only natural flavoring ingredients instead of a product that is artificially flavored.
“[This] is deliberately intended to give consumers false the impression that the products are composed only of natural fruits and fruit juices and not artificially flavored as they actually are.”
Bai Brands: We stand by our labels... there is no merit in this lawsuit
Bai Brands did not explain what function malic acid serves in its core products, which are labeled on the front of pack as ‘Ipanema Pomegranate with other natural flavors’ or ‘Brasilia Blueberry with other natural flavors.’
However, a spokesman for Dr Pepper Snapple Group, which acquired Bai Brands in late 2016, told FoodNavigator-USA: “We stand by the claims and information on our labels. There’s no merit to this lawsuit, and we will defend against it vigorously.”
Flavoring agent or flavor enhancer?
Speaking to us about an earlier, near-identical lawsuit filed by the same attorney vs Campbell Soup over its V8 Splash beverages on April 2, Kantha Shelke, Ph.D., CFS, adjunct faculty, Johns Hopkins University and principal at Corvus Blue LLC, said that "Malic acid may be used to regulate acidity in beverages and it may also be used as a flavoring agent."
Commenting on the V8 Splash lawsuit, she added: "If Campbell Soup uses the synthetic ingredient d-1 malic acid specifically as an acid regulator, and lists this ingredient as ‘malic acid’—among the other acidulants [such as citric acid] —then, it need not declare d-1 malic acid as a flavoring agent."
If it's using synthetic d-1 malic acid as a flavoring agent, however, it should declare the use of an artificial flavoring, she claimed.
"Malic acid is not just a flavor enhancer but an actual flavoring agent. Companies are calling it a ‘flavor enhancer’ as a way to circumvent FDA regulations which only define flavor compounds."
How are these cases being viewed by the courts?
So what do legal experts make of these cases, and should other firms using malic acid be worried?
Kellogg and Frito-Lay were both sued by the same law firm last year in similar cases over malic acid, with both cases proceeding beyond the motion to dismiss stage, although plaintiffs face an uphill battle in the next phase of the litigation, Angel Garganta, a partner in Venable's commercial litigation practice group, told FoodNavigator-USA earlier this month.
Both deployed slightly different tactics to challenge the claims, with Frito-Lay arguing that there is a distinction between an artificial flavor that “simulates, resembles or reinforces" the characterizing flavor, 21 C.F.R. § 101.22(i)(2), and a flavor enhancer that does not impart its own taste, 21 C.F.R. § 170.3(o)(11) and just enhances the flavor of the characterizing flavor (vinegar) already in the product (in this case, salt & vinegar potato chips).
In other words, argued Frito-Lay, malic acid was not serving as an artificial flavor in the chips, but just as a flavor enhancer, which meant it didn’t have to use the phrase ‘artificially flavored.'
In a March 7 order denying a motion to dismiss the case vs Frito-Lay, however, judge Janis Sammartino said it was not possible to make a factual determination at this stage as to whether the malic acid in the chips served as an artificial flavor, and let the case proceed.
Is there actionable consumer deception here?
Frustrating though this must have been for Frito-Lay, said Garganta, it is by no means clear that these cases will make much headway, regardless of the classification of malic acid: "A number of courts have held that a regulatory violation does not always amount to actionable consumer deception.
"If you want to get a class certified you also need to present a damages model that establishes a price premium on a class wide basis that is attributable to the alleged misrepresentation, and that's going to be extremely difficult in a case like this."
Attorney: I would expect serious typicality issues here
Another legal source added: “This [the complaint vs Campbell Soup] strikes me as just another goofy complaint that will run into serious problems for class certification given the widely varied reasons people have for purchasing such products (taste, anyone?), and the clear list of ingredients for those consumers who share in common with the putative class representative such a keen interest in health. I would expect serious typicality issues.”
*The case is: Branca v. Bai Brands, LLC 3:18-cv-00757 filed in the southern district of California.
**The cases are Sims et al v. Campbell Soup Company, 5:18-cv-00668, in the central district of California; Allred v. Frito-Lay North America Inc, 3:17-cv-01345 and Allred v. Kellogg Company, 3:17-cv-01354, filed in the southern district of California. The plaintiffs in all cases are represented by attorney Ronald Marron.
Ingredients list, Bai Brands Burundi Blueberry lemonade:
Filtered water, Bai Proprietary Sweetener Blend (erythritol, stevia extract), juice concentrates (lemon, blueberry), natural flavors, citric acid, fruit and vegetable juices (for color), malic acid, coffeefruit extract, white tea extract, vitamin C (ascorbic acid), sodium citrate.
According to the FDA, “Malic acid is the common name for 1-hydroxy-1, 2-ethanedicarboxylic acid. L ( + ) malic acid, referred to as L-malic acid, occurs naturally in various foods. Racemic DL-malic acid does not occur naturally. It is made commercially by hydration of fumaric acid or maleic acid.
“The ingredients are used as a flavor enhancer, flavoring agent and adjuvant, and a pH control agent.”