Nathan A. Adams IV is a Partner in our Tallahassee office.

In Augustine v. Talking Rain Beverage Co., Inc., No. 18-cv-2576-CAB-BGS, 2019 WL 1590469 (S.D. Cal. April 12, 2019), the court dismissed a putative nationwide class action for fraud by omission, negligent misrepresentation, and breach of express warranties and implied warranties, but not the corollary California class claims. The plaintiffs contend that they relied on the Sparkling Ice product labels and believed they were buying all-natural products with natural flavoring ingredients, instead of artificially flavored sparkling water. The plaintiffs claim that to perpetuate false impressions, the label prominently displays a "naturally flavored designation" and omits the legally required "artificially flavored" disclosure, yet an ingredient identified on the back, "malic acid," is an artificial flavor. The court rejected the defendant's argument that the plaintiffs' claims premised upon the theory that the words "artificially flavored" are omitted from the front label are preempted by the federal Nutrition Labeling and Education Act. California's Sherman Law adopts the Federal Food, Drug, and Cosmetic (FD&C) Act without modification. The court also refused to dismiss as preempted the plaintiffs' claims based on "malic acid," notwithstanding the defendant's theory that the term sufficiently describes the ingredient and is not vague. "Malic acid" may allegedly refer to several forms, including natural and commercially manufactured forms. The court dismissed the plaintiffs' nationwide claims in response to the defendants' argument that there is no way to determine if the multistate claims have been adequately pled absent the identification of the relevant state laws. The court granted the plaintiffs leave to amend.

Food and Beverage Law Update: July 2019

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