Talking Rain Beverage Company, Inc. has an unusual name, but the allegations in this class action are not at all unusual. The complaint claims that the company’s Sparkling Ice drinks, which the company labels as being naturally-flavored, actually contain an artificial flavoring ingredient, malic acid.
The Nationwide Class for this action is all US citizens who bought the products in their state between January 1, 2012 and the date the class is certified, for personal use and not for resale. The California Class is similar, but includes retail purchases by California citizens made in California.
Talking Rain packages its Sparkling Ice drinks in tall, slim bottles. These flavors are at issue:
The front of each bottle identifies the product as “Naturally Flavored Sparkling Water.” However, a close look at the ingredient label shows that one of the ingredients is malic acid.
While malic acid can naturally occur in certain foods, like tart apples, the natural form is not the form generally used in processed food products. There is thus more than one form of malic acid.
The drinks’ labeling violates federal and state laws, the complaint says, first because it identifies the substance used only by its general name, malic acid, and not by its specific form, which the complaint claims is d-l malic acid.
That type of malic acid is not natural, the complaint says, but a petrochemical product made from benzene or butane through chemical processes.
The malic acid gives the drinks a tart, fruity flavor, but since that part of the flavor comes from an artificial ingredient, the complaint claims that both federal and state laws require that the front and back labels of the products warn consumers that the drinks are artificially-flavored.
The Food and Drug Administration (FDA) says that a recognizable primary flavor identified on the front of a product is a “characterizing flavor.” For example, in the products at issue, “peach nectarine” is a characterizing flavor. But California law, incorporating federal law, says that if an artificial flavor is used in a product that “simulates, resembles or reinforces” the characterizing flavor, the food must be prominently labeled as “Artificially Flavored.”
Instead, the Sparkling Ice drinks are labeled as “Naturally Flavored.” The complaint claims that this constitutes misbranding under California law. Its first allegations are fraud by omission and negligent misrepresentation under the common law of all states; it also alleges violation of various California laws.