Federal Court Finds Issue of Fact on “Artificial Flavor” Label — Partially Grants Class Certification

Recently, the United States District Court for the Southern District of California granted partial certification to a class-action suit filed over alleged false advertising based primarily upon the labeling of “artificial flavors” in beverages manufactured by defendant Ocean Spray Cranberries, Inc.

The plaintiff claimed that the labels on certain juice-based beverages falsely stated “No . . . artificial flavors” when in fact the beverages contained artificial flavoring chemicals (malic acid and fumaric acid) that simulate the advertised fruit flavors.   The plaintiff was seeking to certify a class consisting of all California citizens who purchased one of twelve different Ocean Spray products, for personal use and house use and not for resale, in California from January 1, 2011 until the date class notice is disseminated.

A central issue in dispute over plaintiff’s application was over “predominance.” Under Federal Rule of Civil Procedure 23(b)(3), a class-action plaintiff must demonstrate “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy” and that “the questions of law or fact common to class members predominate over any questions affecting only individual members.”  Predominance, in turn, can be satisfied “[w]hen common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998).

Ocean Spray argued that this concept of predominance had not been met because the plaintiff did not present evidence that malic and fumaric acid function as “flavors” in the beverages at issue in the lawsuit. Ocean Spray also argued that those two acid ingredients were not included on the U.S. Food and Drug Administration list of “artificial flavors.”

Notwithstanding the lack of any such classification by the FDA, however, the court rejected the defendants’ arguments, finding that there was an issue of fact as to whether the malic acid and fumaric acid function as “flavors” in the defendant’s juice-based beverages.

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