A pair of malic acid decisions recently issued by Judge Coleman in the Northern District Court of Illinois reaffirmed that the statements “natural flavors with other natural flavors” and “no artificial flavors” receive different treatment under state false advertising laws, at least in that district.

In Boss v. Kraft Heinz Co., the plaintiffs alleged that Kraft Heinz’s MiO water-flavoring products contained synthetic malic acid, rendering false and misleading the claim “natural flavors with other natural flavors” on the products’ labeling.  2023 WL 5804234 (N.D. Ill. Sept. 7, 2023).  The court, applying the reasoning of Gouwens v. Target Corp., 2022 WL 18027524 (N.D. Ill. Dec. 30, 2022), which we previously covered, dismissed the complaint.  Specifically, the court reasoned that even assuming the malic acid in the products did function as an artificial flavor, the plaintiffs could not establish that the claim “natural flavors with other natural flavors” was misleading, because the claim did not amount to an affirmative representation that the products were free from artificial flavors.  Furthermore, similar to Gouwens, where the court held that no reasonable consumer would believe that “a shelf-stable, bright red fruit punch flavored liquid water enhancer” was free of artificial ingredients absent an affirmative statement to that effect, no reasonable consumer would believe a MiO water-flavoring product did not contain artificial flavors when there was no such affirmative representation.

By contrast, in Tatum v. Kraft Heinz Co., Judge Coleman declined to dismiss similar allegations over Kraft Heinz’s Crystal Light drinks.  2023 WL 5804252 (N.D. Ill. Sept. 7, 2023).  According to the court, the Crystal Light drinks “[went] further than merely omitting the disclosure of artificial flavors” by expressly stating that the drinks contained “no artificial sweeteners, flavors, or preservatives.”  The court held that such an affirmative statement was likely to mislead reasonable consumers to believe that the drinks were free from artificial flavors.  And because the court found the question of whether malic acid functioned as a flavor or a flavor enhancer inappropriate for resolution on a motion to dismiss, the court allowed the action to move forward.

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 Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.

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.