A federal class action complaint, filed June 22, 2022, alleges the words “Natural Flavor With Other Natural Flavor” directly below “Fruit Punch” render the omission of “artificially flavored” deceptive on Target Corporation’s label for Market Pantry brand liquid beverage concentrate water enhancer containing malic acid as the second-most predominant ingredient (after water).  We have reported on a similar class-action lawsuit filed against Publix Super Markets, Inc. for their “strawberry watermelon” water enhancer.  In both cases, the plaintiffs allege that testing detected DL-malic acid, which is an artificial form of malic acid that impacts the characterizing flavor of the products and, therefore, the products should have been labeled as “artificially flavored” or “artificial” to avoid misleading consumers and to comply with 21 CFR 101.22(i)(2).

In a memorandum filed July 13, 2022, Target disputes whether the plaintiff has plausibly alleged that the malic acid in the product acts as a “flavor” and that it is “artificial.”  In addition to these assertions, as wells as the related arguments over distinctions between a “flavor enhancer” and a “flavor” under FDA’s regulations, which courts have found cannot be resolved on a motion to dismiss, Target has also built arguments for dismissal based on the assertion that it never made any representation on the product’s label or elsewhere that the water enhancer was all-natural or free of artificial flavors.  Specifically, the memorandum argues that the artificial flavor status of malic acid is immaterial because the omission of an “artificially flavored” statement, even if it were required for malic acid (Target argues it is not), does not transform the FDA-mandated statement “Natural Flavor With Other Natural Flavor” into a claim that the water enhancer is “all natural,” nor would it lead a reasonable consumer to assume that a shelf-stable, bright red “fruit punch” concentrate is free of artificial ingredients.

Unless there is room to argue that consumers who wish to avoid artificial ingredients may for some reason be uniquely concerned with flavors, as opposed to the artificial status of ingredients with other functions, such as sweeteners or colors, the court may possibly grant Target’s request for dismissal on the basis that noncompliance, if any, with FDA’s flavor labeling regulations, would not deceive a reasonable consumer about the “natural” quality of the fruit punch water enhancer.