On April 11, 2021, a proposed class action lawsuit was filed against Whole Foods in the Southern District of New York alleging that the labeling of their “Lemon Raspberry Italian Sparkling Mineral Water” was false and misleading because it contained only de minimis amounts of lemon and raspberry ingredient.

The product’s front label included images of lemons and raspberries and a flavor statement “With Organic Flavors,” while the ingredient list included “Organic Natural Flavors (Raspberry, Lemon).”

The lawsuit does not directly allege that the product’s labeling is contrary to the federal flavoring regulation (21 CFR 101.22), but rather alleges that because the ingredient list does not separately identify raspberry or lemon ingredients, flavor derived from these ingredients is only a de minimis part of the Organic Natural Flavor and does not meet the consumer expectation of “appreciable amounts” of these ingredients. The complaint also cites lab analysis which allegedly showed that the product does not contain the range of compounds that would be expected if real raspberries and lemons were used. Furthermore, the complaint alleges that consumers expect raspberries and lemons to be included for their “nutritive purposes” including as sources of Vitamin C, potassium, omega-3 fatty acids, and manganese.

The case was filed by Sheehan & Associates, a firm that has become well known in the food litigation space and has filed hundreds of class actions, including a number in litigation related to flavor labeling. Keller and Heckman will continue to monitor and report on this case and other food litigation news.