Health-Ade lawsuit highlights continuing area of legal vulnerability for kombucha makers: sugar and alcohol levels…
In a lawsuit* filed in California on March 6 vs Health-Ade and Whole Foods Market California, plaintiff Gabriela Bayol alleges that independent testing by TTB certified laboratory Brewing & Distilling Analytical Services on multiple batches of Health-Ade beverages “showed that every bottle… contained a level of alcohol by volume greater than 0.5%.”
Once above 0.5% abv, kombucha is classified as an alcoholic beverage by the Alcohol and Tobacco Tax and Trade Bureau (TTB) and should be taxed and labeled accordingly (with the federally mandated warning for alcoholic beverages), notes Bayol, who argues that Health-Ade is misbranded under the FDA’s labeling requirements, and the corresponding state laws that track federal standards.
The lowest level of alcohol detected was 0.88% while “half of the products contained more than twice the allowed alcohol content” said Bayol, adding that Health Ade “cannot escape liability for failing to include the requiring alcohol warning statement even if the beverages become alcoholic after they are sold downstream to retailers or consumers that fail to refrigerate the beverages [cooler temperatures slow/stop the fermentation].”
Whole Foods, she added, “materially contributes, controls, and abets the fraud and misleading advertising by displaying and storing Health-Ade Kombucha separate from other alcoholic beverages in its stores.”
Sugar levels ‘greatly understated’
In addition, she claimed, Health-Ade “greatly understates the sugar content of Health-Ade Kombucha beverages on the products’ labels,” although the suit does not provide details of alleged disparities between sugar levels stated on pack (2-3g/serving) and those detected in the beverages it has had tested.
This is not the first time Health-Ade has faced legal action over sugar and alcohol content noted the lawsuit, citing two consumer class action lawsuits** that were later dismissed, and one competitor suit*** that is still proceeding through the courts.
Health-Ade told us: "It is the company’s policy to not comment on pending litigation, therefore we’re unable to provide feedback at this time."
Attorney: 'It's pretty indefensible'
Defense attorneys contacted by FoodNavigator-USA said plaintiffs’ attorneys were increasingly eyeing up the kombucha category, given the lack of a clear definition of what kombucha is, confusion over ‘raw’ claims, concern over sugar and alcohol levels, and confusion over probiotic claims.
One legal source told us: "We've had clients that have gotten into trouble in this category and it's something the industry is going to have to figure out.
"If the test results are accurate and the levels are well over 0.5% abv, it's pretty indefensible, and if you're doing due diligence to make sure that the product is lower than 0.5% abv when it leaves your facility but you've left the conditions to make it possible for alcohol to develop throughout the shelf-life, that's not much of a defense."
What is kombucha?
Kombucha is typically defined as a fermented tea, whereby firms brew tea, add sugar, and then ferment the mixture with a kombucha culture or 'SCOBY' (symbiotic culture of bacteria and yeast), which creates, among other things, carbon dioxide (explaining why kombucha is a bit fizzy), alcohol, acetic acid (explaining the slightly sour, vinegary taste) and other organic acids such as lactic acid, propionic acid, glucuronic acid and gluconic acid.
Individual brands may also add herbs, adaptogens such as reishi and ashwaganda, botanicals, fruit juice concentrates, and other ingredients, before or after the fermentation.
The devil, however, is in the detail, with some companies making a virtue of the fact that their kombucha is 'raw' (a term not clearly defined in law), and others heat pasteurizing their products to create a consistent product with an alcohol level below 0.5% abv and adding in well-characterized strains of probiotics afterwards, for example.
Some firms use micro-filtration techniques to filter out some yeast (to stop the product continuing to ferment in the bottle and increasing the alcohol content), while others (Brew Dr Kombucha, Aqua ViTea) distill off alcohol after the fermentation without the use of excessive heat.
Some brands such as Suja use a low heat, which they claim kills off residual yeast, but does not destroy beneficial bacteria remaining in the brew post fermentation.
KBI: There have definitely been some growing pains in the industry
Members of non-profit trade association Kombucha Brewers International (KBI) are deploying a variety of tactics to control alcohol, board member Zane Adams (from Buchi Kombucha) told FoodNavigator-USA at the recent KombuchaKon conference, although the KBI has been encouraging members of Congress to back a bill (the Kombucha Act) that would raise the threshold to 1.25%, he said.
"There have definitely been some growing pains in the industry [over the sugar/alcohol issue], and we've been working with the TTB [Alcohol and Tobacco Tax and Trade Bureau - which took a close interest in the category in 2010, prompting a high-profile withdrawal of kombucha products in Whole Foods] and the AOAC to discuss ethanol [alcohol] testing protocols."
Whether 0.5% is a reasonable, or outdated and draconian, threshold, depends on your perspective, but as things stand today, said experts at analytical testing labs exhibiting at KombuchaKon, if you were to pull a random selection of kombucha products off the shelf towards the end of their shelf life at many retailers, you would likely find multiple products with an alcohol content above 0.5%.
Not everyone is getting this right
Sugar levels have also been shown to differ from those stated on pack, added one industry source at the event.
"Where people are often getting into trouble is when they are back-sweetening products [post fermentation] in order to appeal to a more mainstream consumer base, and the fermentation is continuing in the bottle.
"There are lots of ways to maintain a flavor/sweetening profile that's acceptable while at the same time controlling the alcohol level, but not everyone is getting this right."
KBI: killing off the yeast impacts the nutritional profile of kombucha
Similarly, heat is not necessarily the enemy that some purists claim, added another analytical lab source: "If you heat up to around 100 or even 130 degrees fahrenheit or so for 30 seconds, you can selectively remove 99% of the yeast without damaging the beneficial bacteria you might want to keep in the product, for example.
"Or you can filter out some yeast, or add micro-organisms back in that won't ferment and increase the alcohol level. You can also pick ingredients that add to the flavor and sweetness but are not fermentable, or not as fermentable."
However, killing off yeast - even if bacteria is not impacted - is not ideal, said KBI co-founder Hannah Crum: "The yeast contain nutrition in living form - notably B vitamins, think nutritional yeast - so heat killing off the yeast does impact the nutritional profile of the product."
*The case is Gabriela Bayol et al vs Health-Ade LLC and Whole Foods Market California Inc 4:18-cv-01462 Bayol is represented by Bursor & Fisher P.A.
** Hood v. Health-Ade, LLC, 115-cv-286909 (Santa Clara); Samet v. Health-Ade, LLC, 115-cv-286907 (Santa Clara).
***Tortilla Factory, LLC sued Health-Ade alleging violations of the Lanham Act (15 U.S.C. § 1125) on December 19, 2017.
KBI: Threshold should be raised to 1.25% abv
"The law that put 0.5% ABV in place came about during Prohibition and was not based on any scientific study or process, which is how this unintended consequence has occurred.
"The Cullen-Harrision Act which ended Prohibition 'legalized the sale in the United States of beer with an alcohol content of 3.2% (by weight) and wine of similarly low alcohol content, thought to be too low to be intoxicating.'
"Kombucha is a healthy food like all fermented foods. People do not look to kombucha to get intoxicated and in fact, many do the exact opposite and use it as a substitute for intoxicating beverages. So the exception is a technical correction to update this unintended consequence."
Hannah Crum, co-founder, Kombucha Brewers International
