Judge Karas in the Southern District of New York recently dismissed two lawsuits alleging that defendants’ beverage products contained synthetic malic acid that functioned as a flavoring agent, rendering the “100% natural flavors” and “natural flavor with other natural flavor” claims on the product labels false and/or misleading.  

In Hawkins v. Coca-Cola Co., 2023 U.S. Dist. LEXIS 20931 (S.D.N.Y. Feb. 7, 2023), plaintiff alleged that the claim “100% natural flavors” on piña colada-flavored Fanta drinks misled her to believe that the product contained only natural flavors, but in reality the product contained synthetic malic acid that provided flavor.  Similarly, the plaintiff in Hoffman v. Kraft Heinz Foods Co., 2023 U.S. Dist. LEXIS 20929 (S.D.N.Y. Feb. 7, 2023) challenged the claim “natural flavor with other natural flavor” on a mango-peach flavored water enhancer, because the product allegedly contained synthetic malic acid.

In two orders issued on the same day, Judge Karas dismissed both amended complaints with prejudice.  The court held that the plaintiff in each case failed to adequately allege that the product contained synthetic malic acid.  According to Judge Karas, the plaintiffs leveled unsubstantiated and vague allegations that a laboratory analysis had concluded that the product contained synthetic malic acid, but failed to allege details such as the testing methodology, the date, time, or place of the testing, who conducted the testing, and the qualifications of the testers.  Therefore, the court declined to credit the conclusory allegations that the products contained synthetic malic acid.

Judge Karas’s decisions differ from the approach other courts have taken in malic acid cases.  As Judge Karas acknowledged in Hoffman, many courts outside the Second Circuit have focused on whether malic acid functioned as a flavor in the particular product.  And except for the Northern District of Illinois, courts have largely held that that question raises a factual dispute inappropriate for resolution on a motion to dismiss.  (See our previous coverage of the contrast between a case in the Northern District of Illinois and a case in the Middle District of Florida here.)  Judge Karas, however, declined to follow these out-of-circuit cases and instead relied on the reasoning from the “vanilla” cases in the Second Circuit.  In those cases, plaintiffs alleged that products marketed as containing vanilla were misleading because the products allegedly did not contain naturally derived vanilla extract.  Courts in the Second Circuit dismissed several of those complaints, finding they lacked factually substantiated allegations that the vanilla compounds were not derived from natural sources.  See, e.g., Barreto v. Westbrae Nat., Inc., 518 F. Supp. 3d 795, 803 (S.D.N.Y. 2021).  Judge Karas found those cases were equally applicable in the malic acid context.

Malic acid claims remain a focus of the plaintiffs’ bar, and Judge Karas’s decisions should be welcome for companies defending such claims. 

Photo of Kaixin Fan Kaixin Fan

Kaixin Fan is a member of the Litigation and Investigation and the Food, Drug, and Device Practice Groups. She has advised clients in various high-stakes disputes, including clients in the food, beverage, and consumer packaged goods industries in matters implicating consumer protection statutes.

Kaixin Fan is a member of the Litigation and Investigation and the Food, Drug, and Device Practice Groups. She has advised clients in various high-stakes disputes, including clients in the food, beverage, and consumer packaged goods industries in matters implicating consumer protection statutes. Kaixin also has experience in advising clients in complex investigations and counseling life sciences clients on FDA regulatory matters.

Kaixin maintains an active pro bono practice, with experience in the areas of housing, reproductive rights, and gender-based violence.

Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable…

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable terms.

On behalf of a range of clients in the food, beverage, and consumer packaged goods industries, Cort has navigated pre-complaint disputes and defended multiple class actions implicating deceptive and false advertising practices under California’s UCL, FAL, and CLRA, and other states’ false advertising and unfair competition laws. Cort also has a depth of experience with competition matters, having represented clients in civil class action litigation, non-public governmental investigations of both the civil and criminal variety, and internal investigations. He has had a lead role in cases and investigations implicating the high tech industry, alleged “no-poach” agreements, and price-fixing and similar cartel conduct. He is also a leader in the antitrust bar and the recent chair of the Antitrust Section of the Bar Association of San Francisco.

Cort is a co-chair of Covington’s LGBT+ Affinity Group and is deeply involved in the firm’s efforts to recruit, mentor, and promote diverse attorneys, including LGBT+ attorneys.

Prior to joining Covington, Cort was a national political consultant who specialized in polling and focus group research. He leverages this research background in his litigation practice, particularly in defending consumer cases.