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Switch Sparkling Drinks Deceptive “No Preservatives,” “No Sugar Added” Claims Class Action

The Switch Seal: "100% of what you want, 0% of what you don't"

Apple & Eve’s line of Switch Sparkling drinks are marketed as having “No Preservatives” and “No Sugar Added.” The complaint claims that these claims are deceptive and misleading, because the drinks do contain preservatives and because the “No Sugar Added” claims is falsely intended to give the impression that the drinks are low-calorie.

The Nationwide Class for this action is all persons or entities in the US who made retail purchases of the products at issue in this case during the applicable limitations period. Alternatively, a New York Class is proposed, for those who made their purchases in New York.

The complaint claims that Apple & Eve wants to present the drinks as being healthier and lower in calories than other, similar drinks because it knows that this is what consumers are looking for, and because it knows they will pay more for such drinks. The “No Preservatives” and “No Sugar Added” claims are made both on the front of the cans and on the company’s website.

No Preservatives Claim. According to the complaint, the “No Preservatives” claim is false, because the drinks contain either ascorbic acid or citric acid, both of which are preservatives. 

Below is a list of the products at issue and the preservatives they contain:

  • Switch Kiwi Berry (ascorbic acid) 
  • Switch Black Cherry (ascorbic acid) 
  • Switch Tropical Pineapple (citric acid and ascorbic acid) 
  • Switch Watermelon Strawberry (ascorbic acid) 
  • Switch Grape (citric acid and ascorbic acid) 
  • Switch Orange Tangerine (ascorbic acid) 
  • Switch Hardcore Apple (ascorbic acid) 
  • Any other Switch product that (1) claims to have no preservatives despite containing citric acid, ascorbic acid, or any other preservatives, and/or (2) claims to have no added sugar but does not have a significantly reduced calorie count or a disclosure to this effect. 

No Sugar Added Claim. The complaint claims that the “No Sugar Added” claim is deceptive, because it leads consumers to think that the drinks are low in calories. In fact, it says, the drinks contain more calories than other similar drinks—for example, 606% more calories than Wave Sparkling Grapefruit Juice and 757% more calories than Minute Maid Sparkling Mixed Berry Juice.

The complaint asserts that consumers associate the “No Sugar Added” claims with lower calories. It quotes a study done by food scientists and published in the Nutritional Bulletin: “Participants felt deceived if sugar reduction claims were being made without a significant reduction in calories, and this was also seen as a frustrating revelation for those on a weight loss diet.”

Federal law requires that terms such as “No Sugar Added” can only be used with food that is not low-calorie if “[t]he product bears a statement that the food is not ‘low calorie’ or ‘calorie reduced’ (unless the food meets the requirements for a ‘low’ or ‘reduced calorie’ food and that directs consumers’ attention to the nutrition panel for further information on sugar and calorie content.”

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