Class Action Alleges Preservatives in Products Claiming None

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“No Preservatives” Claim Challenged

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Wednesday, January 24, 2024

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A class-action lawsuit was filed last week alleging that Defendants’ Motts, LLP and Keurig DR Pepper Inc. falsely and misleadingly labeled their product, “Mr. & Mrs. T Original Bloody Mary Mix,” as containing “no added preservatives” when it contains citric acid, which is alleged to function as a preservative.
FDA defines “preservative” in part as “any chemical that, when added to food, tends to prevent or retard deterioration thereof, but does not include common salt, sugars, vinegars, spices, or oils extracted from spices . . .” 21 CFR 101.22(a)(5). Citric acid is affirmed as GRAS in 21 CFR 184.1033 for general use in food. The Food Chemicals Codex monograph for citric acid describes its functions as a “sequestrant; dispersing agent; acidifier; flavoring agent.”
Plaintiff argues that the primary function of citric acid in the product is as a preservative, regardless of any other functions it may perform, especially because “Defendants have not declared a contrary purpose for adding citric acid and the Products separately contain flavorings (i.e., ‘natural flavor’) as an ingredient.” However, we note that products may contain multiple flavors, and there is no requirement that a flavor be declared as such (i.e., citric acid, when used as a flavor, could be declared as “citric acid.”). Furthermore, citric acid could be used as a “flavor enhancer,” a substance “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.” 21 CFR 170.3(o)(11).
At the pleadings stage, the Court will have to decide whether Plaintiff has sufficiently alleged that citric acid acts as a preservative. Compare Hu v. Herr Foods, Inc.,251 F. Supp. 3d 813 (E.D. Pa. 2017) (holding that plaintiff failed to adequately allege that citric acid acts as a preservative in the product at issue) with Mason v. Reed’s Inc., 515 F. Supp. 3d 135 (S.D.N.Y. 2021) (holding that Plaintiff had adequately alleged that citric acid acted as a preservative). Although such cases frequently settle, we will continue to monitor and report on any substantive decisions in this case.