V8 Splash beverages contain water, high fructose corn syrup, reconstituted vegetable juice, and less than 2% of a reconstituted fruit juice blend, plus natural flavoring, citric acid, malic acid, vitamin C (ascorbic acid), red #40 and sucralose.
“The products consist of 95% water and high fructose corn syrup, topped up with 3% reconstituted carrot juice and 2% or less of the juice of all the fruits and berries for which the products are named,” claims the lawsuit.*
“Defendant’s ‘Berry Blend’ product, for example, contains less than 2% of the juice of all of the berries shown on its label, combined. Instead of healthful fruit juice, the products instead contain massive amounts of refined sugar. Tropical Blend V8 Splash, for example, contains 18g sugar per 8oz serving [according to the website, this product contains 16g sugar], more than fully-loaded Grape Kool-Aid.”
Malic acid
However, much of the complaint, filed in California on April 2, relates to the source and function of malic acid – a food additive commonly used as an acidulant and to add tartness.
While malic acid [L-malic acid] occurs naturally in some fruits, the version Campbell Soup is using in V8 Splash is d-l malic acid, a “synthetic petrochemical added to simulate the flavor of real fruit,” alleges the complaint, which argues that the beverages should therefore be described as ‘artificially flavored.'
“For each of the luscious ripe berries displayed on the [Berry Blend] label, the actual juice in the product is only a 0.004 fraction of the contents – less than half of 1%," says plaintiff Hortense Sims.
"This is not enough to make any of the products taste like any of the fruits or berries displayed on the labels. The products are instead artificially flavored to resemble the fruit and berry juices they are labeled to represent.”
Campbell Soup - which told us that it won't comment on pending litigation - does not provide detail on the source or type of its malic acid, but says on its ‘Whatsinmyfood website that, “We use this ingredient [malic acid] in products where a tart taste is expected.”
Ingredients list, V8 Splash Berry Blend: Water, high fructose corn syrup, reconstituted vegetable juice (water and concentrated juice of (carrots), contains less than 2% of: reconstituted fruit juice blend (water and concentrated juices of (apples, cherries, strawberries, red raspberries, blackberries), natural flavoring, citric acid, malic acid, vitamin c (ascorbic acid), red 40, sucralose.
It has 70 calories and 16g sugar per 8oz serving.
Campbell Soup does not explain what function malic acid serves in V8 Splash, but describes the berry blend on the label as 'A berry flavored juice beverage, with six juices from concentrate and other natural flavors.'
Kantha Shelke: 'Malic acid is not just a flavor enhancer but an actual flavoring agent'
Kantha Shelke, Ph.D., CFS, adjunct faculty, Johns Hopkins University and principal at Corvus Blue LLC, told FoodNavigator-USA that "Malic acid may be used to regulate acidity in beverages and it may also be used as a flavoring agent."
She added: "If Campbell Soup uses the synthetic ingredient d-1 malic acid specifically as an acid regulator, and lists this ingredient as ‘malic acid’—among the other acidulants [such as citric acid] —then, it need not declare d-1 malic acid as a flavoring agent."
If it's using synthetic d-1 malic acid as a flavoring agent, it should declare the use of an artificial flavoring, she claimed.
"Malic acid is not just a flavor enhancer but an actual flavoring agent. Companies are calling it a ‘flavor enhancer’ as a way to circumvent FDA regulations which only define flavor compounds."
Flavor or flavor enhancer?
So what do legal experts make of the case, and should other firms using malic acid be worried?
Kellogg and Frito-Lay were both sued by the same law firm last year in similar cases** over malic acid, with both cases proceeding beyond the motion to dismiss stage, although plaintiffs face an uphill battle in the next phase of the litigation, Angel Garganta, a partner in Venable's commercial litigation practice group, told FoodNavigator-USA.
Both deployed slightly different tactics to challenge the claims, with Frito-Lay arguing that there is a distinction between an artificial flavor that “simulates, resembles or reinforces" the characterizing flavor, 21 C.F.R. § 101.22(i)(2), and a flavor enhancer that does not impart its own taste, 21 C.F.R. § 170.3(o)(11) and just enhances the flavor of the characterizing flavor (vinegar) already in the product (in this case, salt & vinegar potato chips).
In other words, argued Frito-Lay, malic acid was not serving as an artificial flavor in the chips, but just as a flavor enhancer, which meant it didn’t have to use the phrase ‘artificially flavored.'
In a March 7 order denying a motion to dismiss the case vs Frito-Lay, however, judge Janis Sammartino said it was not possible to make a factual determination at this stage as to whether the malic acid in the chips served as an artificial flavor, and let the case proceed.
Is there actionable consumer deception here?
Frustrating though this must have been for Frito-Lay, said Garganta, it is by no means clear that these cases will make much headway, regardless of the classification of malic acid: "A number of courts have held that a regulatory violation does not always amount to actionable consumer deception.
"If you want to get a class certified you also need to present a damages model that establishes a price premium on a class wide basis that is attributable to the alleged misrepresentation, and that's going to be extremely difficult in a case like this."
Attorney: I would expect serious typicality issues here
Another legal source added: “This strikes me as just another goofy complaint that will run into serious problems for class certification given the widely varied reasons people have for purchasing such products (taste, anyone?), and the clear list of ingredients for those consumers who share in common with the putative class representative such a keen interest in health. I would expect serious typicality issues.”
*The case is Sims et al v. Campbell Soup Company, 5:18-cv-00668, in the central district of California. The plaintiff is represented by Ronald A. Marron.
**The cases are Allred v. Frito-Lay North America Inc, 3:17-cv-01345 and Allred v. Kellogg Company, 3:17-cv-01354, both filed in the southern district of California.
According to the FDA, “Malic acid is the common name for 1-hydroxy-1, 2-ethanedicarboxylic acid. L ( + ) malic acid, referred to as L-malic acid, occurs naturally in various foods. Racemic DL-malic acid does not occur naturally. It is made commercially by hydration of fumaric acid or maleic acid.
“The ingredients are used as a flavor enhancer, flavoring agent and adjuvant, and a pH control agent.”
“Our V8 portfolio remained challenged and sales of V8 declined in the quarter…
“Our competitive advantage in V8 is that we are vegetable based. And in our 100% vegetable juice and our V8 + Energy, which is powered by green tea, we actually have performed pretty well. It's where we have had the combination of fruit and vegetable which is higher in sugar [V8 Splash] that we have been affected.”
Denise Morrison, CEO Campbell Soup Co (Q2, 2018 earnings call, February 16)