Yes, you can make ‘no sugar added’ claims on 100% juice, CA judge tells Kroger
In her lawsuit vs Kroger*– filed in March 2017 - plaintiff Sonia Perez argued that ‘no added sugar’ claims on Kroger’s 100% apple juices were misleading as they implied that 100% juice products typically contained added sugar.
According to FDA regulations (click HERE), argued Perez, even if it is technically true that there is no added sugar in your food or beverage, you can only make ‘no added sugar’ claims on your product if “the food that it resembles and for which it substitutes normally contains added sugars.”
As 100% fruit juices do not normally contain added sugars, Kroger is violating federal law and breaching California’s consumer protection laws (which mirror federal law), argued Perez, who also claimed that competitors' 100% juices did not typically make 'no added sugar' claims.
Kroger, however, interpreted the FDA rule differently, and argued that shoppers would compare its 100% juices a wide variety of juice drinks, many of which do contain added sugar.
What category are 100% juices competing in?
So which category is the relevant one here? Just 100% juice products - which don't typically contained added sugar? Or a wider set of juice drinks - which often do?
In his Sept 28, 2018 order on the case, judge Otis D Wright II said that the FDA rule was ambiguous (and that both Kroger and the plaintiff have made reasonable arguments as to how they interpret it) and deferred to a letter that the FDA had sent to the Center for Science in the Public Interest last year which stated that a substitute product need not be "very similar."
The FDA letter explained: "For example, juices with no added sugar could substitute for juices with added sugar, fruit-flavored soft drinks sweetened with sugar, or other sugar-sweetened beverages."
According to Judge Wright: “The FDA’s interpretation is clear and consistent with Kroger’s interpretation that Kroger Apple Juice is interchangeable and can substitute for other juices with added sugar, fruit-flavored soft drinks sweetened with sugar, or other sugar-sweetened beverages.
“The court grants Kroger’s motion for summary judgment because Kroger Apple Juice’s ‘No Sugar Added’ claim does not violate federal law, and thus, does not violate the UCL, FAL, or CLRA [California’s unfair competition law, false advertising law, or consumer legal remedies act].”
Cases vs Odwalla, Zico also tossed
His decision follows an August 1 order from US district Judge Dale Fischer also in the central district of California granting a motion for summary judgment in favor of Odwalla in a similar case (Wilson v. Odwalla 2:17-cv-02763).
Noting that cases vs Zico Beverages and Sun Pac Inc have also faltered on the same grounds, said Wright, “The Court admonishes counsel to tread carefully in continuing to bring these particular claims.”
*The case is Sonia Perez v The Kroger Co et al 2:17-cv-02448 filed in the central district of California
