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Illinois Federal Court Dismisses One False Advertising Suit Based on Malic Acid, While Sustaining Another

By Kaixin Fan, Ashley Simonsen & Cort Lannin on September 21, 2023
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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 Food, Drug, and Device Practice Group. She advises pharmaceutical, biotechnology, and medical device companies as well as trade associations in regulatory matters. She has experience in matters relating to FDA informed consent requirements, advertising and promotion…

Kaixin Fan is a member of the Food, Drug, and Device Practice Group. She advises pharmaceutical, biotechnology, and medical device companies as well as trade associations in regulatory matters. She has experience in matters relating to FDA informed consent requirements, advertising and promotion issues, and other aspects of U.S. federal and state regulation of pharmaceuticals, biologics, and medical devices. Kaixin also assists clients in navigating complex regulatory matters in China, and works closely with local counsel in other Asia-Pacific jurisdictions. She has supported life science transactions by evaluating regulatory compliance of companies and advising on commercial agreements.

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

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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.

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Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes consumer and antitrust class action matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has an extensive track record of defeating false advertising, privacy, and competition-related claims.

Cort has defended many…

Cortlin Lannin is a litigator who defends clients in high-stakes consumer and antitrust class action matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has an extensive track record of defeating false advertising, privacy, and competition-related claims.

Cort has defended many of the world’s largest consumer companies from class action litigation. This includes cases alleging false advertising, deceptive trade practices, and privacy violations under California’s UCL and CLRA, New York’s GBL, and other states’ laws. He is experienced at heading off cases before any complaint is filed, successfully dismissing complaints at the pleading stage, and defeating class certification. The Daily Journal has recognized Cort as achieving a “Top Verdict” and as one of California’s Top 100 lawyers, noting that “he has developed a track record of securing dismissals in consumer class action cases before discovery begins—a feat that remains uncommon in a practice area where courts typically allow plaintiffs broad latitude to develop their theories.” He is also an editor of the firm’s Inside Class Actions blog and regularly contributes analyses of new class action decisions and developments.

Cort is also a co-chair of the firm’s Cartel Defense Practice Group and represents companies and individuals facing criminal and civil antitrust investigations, including before the DOJ Antitrust Division and FTC. He has defended his clients in cases implicating the high-tech industry, alleged “no-poach” and wage-fixing agreements, price-fixing, and similar conduct. For his accomplishments, he has twice been recognized as a Top Antitrust Lawyer by the Daily Journal.

Cort maintains an active pro bono practice and is a co-chair of Covington’s CovPride Resource Group.

Watch: Cort provides insights on class action litigation, as part of our Navigating Class Actions video series.

 

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  • Posted in:
    Business and Commercial
  • Blog:
    Inside Class Actions
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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