Mott’s, LLP makes food and beverage products, among them a line of carbonated drinks under the Stewart’s Fountain Classics brand. The complaint for this class action alleges that these drinks are not properly labeled to inform consumers that the drinks are artificially flavored.
Several classes have been proposed for this action. The Nationwide Class is all consumers in all states who bought any of the products containing the actionable representations during the statutes of limitations. Similar classes have been proposed for consumers in New York, Florida, Massachusetts, and California.
The products are sold in 12-ounce glass bottles and said to be “nostalgic ‘old fashioned’ fountain sodas, having originated at the Stewart’s Restaurants, a chain of root beer stands started in 1924.” They come in various flavors, including Orange ’n Cream, Black Cherry, Cherries ’n Cream, Grape, Cream, and Key Lime.
The complaint asserts that the “characterizing flavors” of the products are lime, black cherry, cream and orange, and vanilla. On the bottles for Key Lime, Black Cherry, and Orange ’n Cream sodas, the lower righthand corner of the labels announce that drinks are “Naturally and Artificially Flavored.” On the bottle for the Cream soda, the same corner announces that the drink is “Artificially Flavored.”
According to the complaint, the US Code says that the source of the characterizing flavors of products should be immediately before or after the name of the characterizing flavor, “without any intervening material,” so that the consumers do not mistakenly think that artificially-flavored products are naturally-flavored.
With these bottles, the complaint claims, “the origins of the characterizing flavors are set off from the actual flavor claim … by the entire length of the label, separated several inches across the Product’s logo and vignette.” The complaint believes this is misleading.
For example, the “representation of ‘Creamy Vanilla Taste’ gives consumers the impression the Cream Soda will contain vanilla in a form expected by consumers—extract, flavor, or natural vanilla flavor.” However, this is not true. “Mass spectrometry testing on the Cream Soda will or has revealed that to the extent the Cream Soda contains any component related to real vanilla, it is or will be revealed as ethyl vanillin—a compound which has no relationship to the vanilla plant.”
The complaint alleges, “The nostalgic imagery and glass bottles assist in focusing the consumers’ attention on the upper-right characterizing flavor claim, and away from the inconspicuous disclosure of artificial flavors at the bottom of the label.”
The complaint alleges negligent misrepresentation, breaches of warranties, fraud, and violations of state consumer protection laws, among other things.