In a complaint* filed on June 15 in New York by Joshua Levin-Epstein of Levin-Epstein & Associates PC and Spencer Sheehan of Sheehan & Associates PC, plaintiff Michael Pizzirusso alleges that RXBAR (now owned by Kellogg) misleads shoppers by…
1 - Labeling ‘egg whites’ as ingredients on the front and back of its labels when, he alleges, RXBAR uses egg white fractions that should be correctly listed as ‘egg white protein powder.’
b - Using infused fruit pieces (fruits infused with apple juice concentrate for example), but listing them as straight ‘blueberries’ on pack.
Noting that RXBAR used to list ‘egg white protein powder’ and ‘dried wild blueberries infused with apple juice concentrate’ on its old product labels, but now lists the more consumer friendly ‘egg whites’ and ‘blueberries,’ the complaint alleges that the formulation has not changed, but the labels have, although it does not explain the basis of this assumption.
In the case of the egg white, it speculates that RXBAR “utilizes one or more of the egg white fractions, but not the entire egg white” because “the foaming properties of [whole] egg whites would limit the ability to blend it with the other ingredients.”
Lawsuit: Consumers would not be as drawn to a product which boldly promoted the presence of ‘Egg White Protein Powder'
To readers wondering why this is grounds for a lawsuit, the complaint argues: “Consumers would not be as drawn to a product which boldly promoted the presence of ‘Egg White Protein Powder.’ Furthermore, parents correctly wouldn’t want to buy their young children foods which contained concentrated protein powders, for a variety of reasons related to normal adolescent and child development.”
As for the berries, it argues: “The fruit pieces incorporated into the products are ‘infused’ (flavored) with sweetening agents such as apple juice concentrate, contrary to defendant’s labels and messaging which emphasize ‘real fruit’ to provide flavor.”
RXBAR: 'We stand by our product and packaging'
RXBAR told FoodNavigator-USA that, "We stand by our product and packaging."
"Sadly, none of these lawsuits surprise me anymore. As less and less people are stating 'all natural,' the plaintiff lawyers that have decided to make a living out of false labeling actions have to keep looking into other aspects of labeling to attack.
"21 CFR 101.4 addresses when a company must designate products as eggs, egg whites, or egg yolks. Specifically it indicates that dried egg whites may be specifically designated as egg whites, so I think there are some definite defenses there.
"Unfortunately, many of these cases aren’t designed to win at trial. They are designed simply to put companies in the position to decide whether they are going to fight it or settle out. Companies such as RXBAR, which has received a lot of attention and presumed increase in sales, are likely targets for plaintiff lawyers seeing potential big sales and deep pockets. It will be interesting to see whether they push back."
Justin Prochnow, shareholder, Greenberg Traurig
Attorney: Who knows if consumers care one iota about whether the eggs whites are fractional?
So what do legal experts think of the lawsuit?
Amin Talati Upadhye attorney Ryan Kaiser noted that it was not clear on what basis the plaintiffs were making such specific allegations, adding: "One would hope that the allegations in this particular complaint are based on more than just suspicion because the company’s prior labels listed different ingredients. If in fact that allegations are not correct, then this case will be over very quickly."
He added: "To certify a class, the plaintiff is going to need to prove that all members of the class were similarly mislead by those specific claims, and harmed as a result in the same way, so it will be a difficult slog for the plaintiff in this case."
'Some allegations in the suit strike me as quite facile'
Adam Fox, partner at law firm Squire Patton Boggs, also observed that the allegations were “awfully specific, particularly given that the plaintiff does not identify the basis for his allegations.”
At the same time, the complaint “fails to provide much detail at all to support the beliefs about the use of egg white fractions or infused fruits other than the fact that the defendant used to use—and disclose—them,” noted Fox.
“The plaintiff probably should have taken care to explain why defendant would change its practice (assuming the ingredients haven’t changed) or at least state plainly that the ingredients have not changed.”
Some allegations in the suit also “strike me as quite facile,” he added. “Speculating about what consumers or parents generally want is silly without some basis, such as survey evidence, to support it.
Serious doubts
Should the case reach the class certification phase, it may be “problematic,” he predicted. “Some consumers may purchase the products because of their taste. Some may like the convenience or price point. Some may like the nuts or dates, or thus humorous ‘No B.S.’ adult labeling. Who knows the portion of these consumers that care one iota about whether the eggs whites are fractional?
“The answer to this question may determine whether individual issues predominate and whether the class is even administratively feasible. In the end, I have serious doubts about whether any consumers genuinely believe that the egg whites referenced on the principal display panel are anything other than what this plaintiff contends, and even more serious doubts that their erroneous belief was material to their purchasing decision, as opposed to taste, price, size or the attractiveness of the marketing.”
*The case is Pizzirusso v. Chicago Bar Company LLC (dba RXBAR) 1:18-cv-03529 filed on June 15 in the eastern district of New York by Joshua Levin-Epstein of Levin-Epstein & Associates PC, and Spencer Sheehan of Sheehan & Associates PC.
It alleges violations of New York general business law, negligent misrepresentation, breach of express warranty and implied warranty of merchantability, fraud, and unjust enrichment.
** The case is Medina v That’s It Nutrition LLC. 1-18-cv-02022 filed in the U.S. District Court for the Eastern District of New York.