Monday, May 20, 2013

No reasonable consumer would think diet soda "all-natural"

Viggiano v. Hansen Natural Corp., --- F.Supp.2d ----, 2013 WL 2005430 (C.D. Cal.)

Viggiano brought the usual California claims, along with federal warranty claims, based on Hansen’s diet Premium Sodas labeled as containing “all natural flavors.”  Each soda allegedly contained two synthetic ingredients, acesulfame potassium (“ace-k”) and sucralose, used as sweeteners and/or “flavor enhancers.”  Each soda also contained at least one natural fruit extract flavor. Viggiano alleged that consumers would understand “natural flavors” to mean that the flavors have not been “modified, enhanced and/or supplemented with artificial and/or synthetic compounds,” and that the “Premium Diet Soda” name also implied that the sodas were flavored only with natural ingredients.

Hansen argued that his claims were preempted because the FDA expressly regulates the use of “natural flavor” labels.  A manufacturer can use a “natural flavor” label even if the product contains artificial, non-flavoring ingredients, so long as the “characterizing flavor” is, in fact, natural.  However, if any added artificial flavor “simulates, resembles or reinforces the characterizing flavor ... the name of the characterizing flavor shall be accompanied by the words ‘artificial’ or ‘artificially flavored.’”  Other courts had found preemption in similar situations, distinguishing between unnatural ingredients and unnatural flavors.  The regulations allow “natural flavors” even when not all the ingredients are natural.

The FDA allows sucralose and ace-k as sweeteners and, for the latter, as a flavor enhancer—a “[s]ubstance[ ] added to supplement, enhance, or modify the original taste and/or aroma of a food, without imparting a characteristic taste or aroma of its own.” Thus, the court held, neither sucralose nor ace-k were flavors, but rather sweeteners/amplifiers of whatever characterizing flavor a product already had.  (I don’t know why that doesn’t count as “reinforc[ing] the characterizing flavor.”)  And neither appeared on the list of artificial flavors promulgated by the FDA.

Since FDA regulations expressly permitted this labeling, any requirement to use additional or different labeling was expressly preempted.  Another decision had held that the FDCA did not preempt state law consumer claims that an “all natural flavors” label on an ice cream box was misleading, because a reasonable consumer could plausibly interpret that to mean “all natural ingredients.”  But that court didn’t appear to have considered the specific flavor regulations, which made clear that ace-k and sucralose were not flavors.  “While the distinction between an enhanced natural flavor and an unenhanced natural flavor may be one with which normal consumers are not familiar, the FDA has not precluded food manufacturers from labeling their products naturally flavored simply because the flavor may be artificially enhanced.”  Moreover, the general “all natural flavors” label was confirmed by the ingredient list, which identified the specific natural characterizing flavor for each can.

Even if the claims weren’t preempted, dismissal would be appropriate, because no reasonable consumer would be deceived.  “Flavors” are not “ingredients,” and Viggiano identified no artificial flavors in the drink.  “In cases where a product's front label is accurate and consistent with the statement of ingredients, courts routinely hold that no reasonable consumer could be misled by the label, because a review of the statement of ingredients makes the composition of the food or drink clear.”  Plus, the fact that the soda was clearly labeled “diet” made clear that it contained artificial sweeteners, because it’s the absence of sugar that makes a soda “diet.”  Given the ubiquity of diet sodas, a reasonable consumer would understand that a diet soda contains artificial sweeteners, even if it also said “all natural flavors.”

The truth of “all natural flavors” also disposed of the express warranty claims. To the extent that Viggiano relied on the “premium” statement, that was mere puffery with “no concrete, discernable meaning in the diet soda context.”  Read in context of the other statements, none of them were actionable; thus, “premium” didn’t form part of an overall warranty regarding the quality of the product. Unsurprisingly, the implied warranty claims and the Magnuson-Moss Warranty Act claims also failed.  The latter failed not just because the state law claims failed, but also because the MMWA doesn’t apply to warranties otherwise governed by federal law, as here with the FDCA, and because Hansen’s label wasn’t a covered “written warranty” in the form of an assertion that the product was defect free or that it would meet a specific level of performance over a specified period of time.

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