Izze Sparkling beverages claim to have “No Added Sugar” and “No Preservatives.” But the complaint for this class action claims that these promises are false, even if, in one case, they may be literally true.
The class for this action is all persons or entities in the US who made retail purchases of the products during the limitations period. In the alternative, a class of all such persons and entities in the state of New York is proposed.
The complaint does not claim that the drinks do contain added sugar. Rather, it claims that when consumers see those words, they are led to believe that the product is low calorie. The Food and Drug Administration (FDA) has said, “Consumers may reasonably be expected to regard terms that represent that the food contains no sugars or sweeteners … as indicating a product which is low in calories or significantly reduced in calories.”
The Izze drinks are not low-calorie, the complaint says; they have 90 calories per 248 ml, while comparable drinks have far less. In fact, the complaint says, they have only 8.5% fewer calories than Coca-Cola, and Coca-Cola is not considered a low-calorie drink.
Federal regulations state that if a food does not meet the requirements for a low-calorie food, then terms like “no added sugar” can be used only if the product “bears a statement that the food is not ‘low calorie’ or ‘calorie reduced’ … and that directs consumers’ attention to the nutrition panel for further information on sugar and calorie content.”
Not only are the Izze product not low-calorie when compared to similar drinks, the complaint says, they actually contain more calories than many such drinks.
As to the “No Preservatives” claim, the complaint points out that the products contain citric acid and/or ascorbic acid. Both of these substances are classified as preservatives, the complaint says. The FDA defines a chemical preservative as “any chemical that, when added to food, tends to prevent or retard deterioration thereof…” not including things like salt, sugars, vinegars and other more natural substances.
Furthermore, the complaint claims that the FDA expressly classifies citric acid and ascorbic acid as preservatives in its Overview of Food Ingredients, Additives, and Colors on its website. The complaint further supports this claim with its attached Exhibit D, a Declaration of Dr. Marc Meyers, a food scientist with a Ph.D. and extensive experience in the field.
The products in question include the following: