A federal class action complaint, filed September 3, 2021, alleges the words “black raspberry flavor” and pictures of black raspberries on the label, together with the dark red color of the beverage render the omission of “artificially flavored” deceptive on Costco’s label for Kirkland brand carbonated, flavored water drink.  In a January 24, 2022 motion to dismiss, Costco disputes the plaintiff’s allegations of noncompliance with FDA’s labeling regulations, highlights that the product does not contain any express “no artificial” claims, and argues that any reasonable consumer understands “black raspberry” as a flavor designator, not an ingredient claim, and could not make any reasonable assumptions based on the use of coloring about the amount of any ingredient that is present in the product.

In a memorandum filed on February 23, 2022, the plaintiff opposes Costco’s motion to dismiss by reasserting allegations of noncompliance with food labeling laws and arguing that where the use of natural flavors in such a product is plausible, as evidenced by other products on the market, it is not unreasonable for consumers to assume that the Kirkland carbonated, flavored water would not contain artificial flavoring and would have more black raspberry ingredients than it does.  The memorandum also notes that Costco did not present evidence that “malic acid,” an ingredient which the plaintiff’s testing demonstrates is D-malic acid, a non-naturally occurring isomer, is used only to control pH, rather than to mimic the tart taste of raspberries.  The plaintiff additionally distinguishes “raspberry flavor” from “raspberry flavored,” arguing that the former phrase was used on the label for the purpose of misleading consumers with respect to the artificial nature of the flavor ingredients.

While no extrinsic evidence of consumer deception has been offered, this is not necessarily required to survive a motion to dismiss under a permissive plausibility standard.