Malic Acid: Newest Culprit in “Natural” Marketing Case Trend

Hilsley v. Ocean Spray Cranberries, Inc., No. 17-cv-2335, 2018 WL 6245894 (S.D. Cal. Nov. 29, 2018)

The Skinny: Malic acid is a common food ingredient used for flavor and pH control. Because of its prevalence and varying uses, a flurry of class action cases were recently filed against companies that use malic acid while simultaneously claiming “no artificial flavors” exist in their product. In Hilsley, a California federal judge granted certification against Ocean Spray.

The Meat and Potatoes: Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California found that “the common, aggregation-enabling issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” Defendant unsuccessfully challenged predominance by arguing that plaintiff has not established that malic and fumaric acids function as flavors.  However, the Court found the relevant question to be whether the label is deceptive to a reasonable consumer—not whether the chemicals actually did what plaintiff alleges.

This case—and the other cases listed below in this malic acid litigation trend— are ones to watch given the factual questions involved regarding whether malic acid serves as a flavor enhancement.

• Wong v. Trader Joe’s Company et al., No. 3:18-cv-00869
• Sims et al v. Campbell Soup Company, 5:18-cv-00668
• Allred v. Frito-Lay North America Inc, 3:17-cv-01345
• Allred v. Kellogg Company, 3:17-cv-01354
• Branca v. Bai Brands, LLC, 3:18-cv-00757