9th Circuit reverses dismissal where plaintiff plausibly alleges that an ingredient is non-natural flavoring

Trammell v. KLN Enterprises, Inc., No. 24-6097 (9th Cir. May 15, 2026)

Perfect summary:

The defendant company in this case represented to consumers that its berry snacks product contained no artificial flavors. The plaintiff bought the product believing the representation to be true. It turned out, however, that the product contained an artificial flavor. Laboratory testing revealed that the product’s flavoring was not naturally occurring but made from an artificial petroleum substrate. At least this is what the plaintiff alleged (albeit with more detail) in his complaint. The district court concluded, however, that the plaintiff failed to state a claim and dismissed the complaint with prejudice. We disagree and reverse.

Wiley Wallaby Very Berry Licorice says on the front, “Natural Strawberry & Raspberry Flavored Licorice,” and “Naturally Flavored,” while the back label states, “Free of . . . Artificial Colors & Flavors.”

Trammell sued for violation of the CLRA, unjust enrichment, and breach of express warranty. Although the product represents that it is free of artificial colors and flavors, it allegedly contains an artificial flavor, malic acid. Natural malic acid, derived from natural fruit sources, is commonly known as “L malic acid,” while artificial malic acid, derived from a petroleum substrate and other synthetic components, is commonly referred to as “DL malic acid.”

Trammell alleged that the product was tested in a laboratory and that the testing results “establishe[d] that the malic acid used in these Products is DL malic acid, and not L malic acid.” Allegedly, the test used the “industry standard” method for testing for the “D isomer” of malic acid, which is “not present in any amount in” natural malic acid and which would indicate “the use of artificial DL malic acid” in the food or beverage tested.

The district court thought that wasn’t enough to plausibly allege that the malic acid was artificial, and that a reasonable consumer wouldn’t be misled because “Naturally Flavored” and “Natural Strawberry & Raspberry Flavored Licorice” were “not unambiguously deceptive”: “a reasonable consumer would not interpret the front label as unambiguously representing that [the Product] does not contain artificial ingredients.” The back label statement “Free of . . . Artificial Colors & Flavors” was not deceptive because the back label “discloses both natural and artificial ingredients in plain text.” “[N]owhere on the front or back label does it state that the product is ‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’” so “nothing about this product—a brightly colored, shelf-stable licorice candy—would lead a reasonable consumer to conclude that [the Product] is free of artificial ingredients when the product labels make no affirmative representations saying as such.”

This was error. The complaint satisfied Rule 9(b). It gave notice to the defendant and provided the court with “some assurance” that his theory of liability “has a basis in fact.” Trammell alleged the specific laboratory that performed the testing; he provided a date of the testing; he explained the qualifications of the laboratory (“a reputable independent food testing and analysis laboratory that has conducted testing for the food and beverage industry since 1984”); and he discussed the laboratory’s “industry standard” methodology for detecting artificial malic acid by testing for the presence of the “D isomer” of malic acid, which is “not present in any amount” in natural malic acid. That was specific enough, and more specific than the allegations in cases on which the district court relied.

As for the merits, “Trammell plausibly pleaded that a reasonable consumer is likely to be deceived by a product that claims to be free of artificial flavors when that claim is (allegedly) not true.” Even if “Natural Strawberry & Raspberry Flavored Licorice” and “Naturally Flavored” wasn’t false or misleading, the back label makes a specific claim about being “Free of . . . Artificial Colors & Flavors,” Trammell has plausibly pleaded that was false or misleading.

Nor, contrary to the district court’s reasoning, did the back label actually disclose both natural and artificial ingredients:

The ingredients list on the back label does not disclose, on its face, which of the ingredients are artificial. Indeed, despite claiming that artificial ingredients are plainly disclosed, neither the district court nor Defendant identifies which ingredients are artificial. Some ingredients, like “malic acid,” may come in two forms—natural or artificial. But the list does not say which it is. A reasonable consumer, not being a chemist, is not in a position to make that assessment when buying the Product. What a reasonable consumer can understand is the Product’s representation that there are no artificial flavors. When that clear representation is placed next to an ingredients list—a list that does not make apparent (1) which ingredients are flavors and (2) which of those ingredients are artificial—a reasonable consumer could plausibly be (mis)led into believing that the Product does not contain artificial flavors. If anything, the ingredients list here—which does include an ingredient called “natural flavor”—reinforces the Product’s free-of-artificial-flavors statement.

True, the product never claimed to be “‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’” but Trammell’s claim wasn’t that those things were false, but rather that the product was not free of artificial flavors. The fact that the product is “a brightly colored, shelf-stable licorice candy” “may go to the artificiality of the coloring and preservative; they do not necessarily bear on the artificiality of the flavors.”

Defendant also argued that the FDA considers “malic acid” a mere “flavor enhancer,” not a “flavoring agent.” “But whatever category malic acid falls under in the FDA’s regulatory scheme, the question is what a reasonable consumer expects, not what a regulatory expert in the food-and-beverage industry knows. And here, Trammell has plausibly alleged that a reasonable consumer expects the Product to be free of artificial flavors and that it would be misleading to that consumer if the Product contained an artificial petroleum substrate as a flavoring—whether as a flavor itself or as a flavor enhancement.”