Tropicana’s ‘pure and natural’ OJ headache persists

US District Judge Dennis Cavanaugh, in the US District Court, District of New Jersey, delivered his opinion on June 12 after Tropicana’ filed a motion to dismiss the consumer class action last September.

Tropicana has been hit with many similar suits across the US, but these have now been consolidated into the New Jersey case now before Cavanaugh, the first to be filed in December 2011.

PepsiCo’s Karen May told BeverageDaily.com that Tropicana was unable to comment on pending litigation - you can read Cavanaugh's opinion here​ - when asked for a response to last month’s ruling.

‘We take consumer faith seriously’: Tropicana​

But she sent through the following statement from a Tropicana spokesperson: “Tropicana Pure Premium remains committed to offering great-tasting 100 percent orange juice with no added sugar, water or preservatives.​

“We take the faith that consumers place in our products seriously and are committed to full compliance with labeling laws and regulations,”​ it added.

Lead counsel for the plaintiffs, Caroline Bartlett, from Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C in Roseland, New Jersey, told BeverageDaily.com yesterday: “We were pleased the decision, which was very thorough and well-reasoned, and we’re looking forward to the next stage, which is discovery, and to presenting our case.”​

Tropicana will now file an answer to an amended complaint on August 5, given that Cavanaugh dismissed two counts against Tropicana but allowed 10 to go forward.

Dennis Lynch et al. are seven purchasers of Tropicana orange juice who assert that the brand should have disclosed flavoring use on ingredients labels; they also allege that the claim ‘100% pure and natural’ is false, and that they paid a premium price for a ‘freshly squeezed’ product.

The plaintiffs point to juice manufacturing process, namely that it is (in the court’s words) “pasteurized, deaerated, stripped of flavor and aroma, stored for long periods of time before [being made] available to the public, and colored and flavored before being packaged”.​

‘Straight from the orange taste’​

Lynch et al. also state that Tropicana’s use of an image of an orange punctured with a straw confuses and misleads consumers, and allege that the brand makes misleading website claims, such as:

“No water, sugar or preservatives are ever added and it is never from concentrate, so you can get only the freshest, most delicious straight-from-the-orange taste.”​

Tropicana argued that the Food and Drug Administration (FDA) established standard of identity for pasteurized orange juice take precedence over state labeling rules imposing different requirements.

The brand said that in labeling the fact that the product was pasteurized it had fulfilled the sole FDA identity requirement required under federal law

But Lynch et al. countered that state law claims focused on the same requirements as the federal regulations administered by the FDA, namely the truthful, complete and accurate labeling of each ingredient contained in each product under the Nutritional Labeling and Education Act (NLEA).

‘Pasteurized’ a shield for liability?​

They added that the NLEA left scope for US state to protect consumers from misleading labeling and deceptive advertising, an argument that Cavanaugh agreed with.

Tropicana also argued that the complaint failed to allege facts demonstrating a reasonable expectation that the processing of the orange juice was all natural due to the presence of the word ‘pasteurized’ on its front label in capital letters.

Thus, it was unreasonable for a consumer to believe that ‘100% pure and natural orange juice’ meant the juice was akin to fresh-squeezed orange juice.

But Cavanaugh said that use of ‘pasteurized’ did not inherently provide a shield for liability for the alleged “deception”​ (under federal and state law)that the juice contained no flavoring or was 100% pure and natural.