In her lawsuit vs Kroger*– filed in March - plaintiff Sonia Perez argued that ‘no added sugar’ claims on Kroger’s 100% apple juices were misleading as they implied that 100% juice products typically contained added sugar.
According to FDA regulations (click HERE), argued Perez, even if it is technically true that there is no added sugar in your food or beverage, you can only make ‘no added sugar’ claims on your product if “the food that it resembles and for which it substitutes normally contains added sugars.”
As 100% fruit juices do not normally contain added sugars, Kroger is violating federal law and breaching California’s consumer protection laws (which mirror federal law), argued Perez, who also claimed that competitors' 100% juices did not typically make 'no added sugar' claims.
Kroger, however, argued that shoppers would compare its 100% juices a wide variety of juice drinks, many of which do contain added sugar.
What category are Kroger's 100% juices competing in?
In his August 18 order on the case, judge Otis D Wright II said Perez had standing to make her claims, and that Kroger had not provided sufficient evidence to establish that the product category at issue ‘normally contains added sugars’ and could not at this stage conclude that Kroger was compliant with FDA regulations, so could not dismiss the complaint on the grounds of pre-emption.
As the FDA is not actively engaged in reassessing or revising the regulations in question, meanwhile, it is also inappropriate to dismiss or stay the case on primary jurisdiction grounds, he added.
However, Perez had not spelled out which rival 100% juice products did not feature ‘no added sugar’ labels, and had failed to state unambiguously which Kroger juices she had actually purchased and how she was misled, he said, noting that “more facts are required to connect the dots to show how the alleged misbranding misled Perez in a way that a reasonable consumer would be deceived.”
Accordingly, the court dismissed her claims under the False Advertising Law, Consumers Legal Remedies Act, and the fraud and unfair prongs of the Unfair Competition Law, but said she had leave to file an amended complaint within 21 days.
Odwalla case on same issue now in private mediation
So which category is the relevant one here? 100% juice products - which don't typically contained added sugar? Or a wider set of juice drinks - which often do?
In a June 28 memo on the near-identical Odwalla ‘no added sugar’ case – also filed by Lee Cirsch at Capstone Law APC - US District Judge Dale Fischer acknowledged that this was up for debate, but said that, “Even if [the plaintiff Stephen] Wilson’s definition [100% juice] is too narrow, defendants [Odwalla] have not convinced the court that their definition [all juice drinks] is correct and mandates dismissal.”
She later sent the case (Wilson et al v Odwalla Inc et al 2:17-cv-02763) to private mediation to be completed no later than June 26, 2018.
Kroger did not respond to requests for comment about the lawsuit.
Attorney: Was the plaintiff genuinely confused?
So what do food law attorneys make of the case?
Adam Fox, partner at law firm Squire Patton Boggs, told FoodNavigator-USA: "The court accepted at face value the plaintiff’s allegation that the foods for which Kroger’s apple juice 'resembles and for which it substitutes' are only other brands of apple juice from concentrate that do not normally contain added sugar."
It is, however, "not obvious that the appropriate comparison products should be as limited as the plaintiff alleged," argued Fox. "Kroger took the position that the comparison should be to 'all fruit juices (excluding lemon and lime juice), nectars, non-carbonated drinks containing any amount of fruit juice or nectar,' many of which do frequently contain added sugar.
"In any event, at a later evidentiary phase of the case, one should expect this issue to be challenged again, with survey evidence likely being instructive on the subject."
He added: "At bottom, the case appears to premise plaintiff’s claim on the interpretation of a regulation—passed by a governmental agency [the FDA] ordinarily focused on safety concerns, rather than issues of consumer perception—and not on actual confusion.
"It accordingly raises serious questions about the legitimacy of the plaintiff asserting a private right of action stemming merely from the existence of a regulation."
*The case is Sonia Perez v The Kroger Co et al 2:17-cv-02448 filed in the central district of California.