Health Ade and Humm kombucha lawsuits to proceed (in part); case vs Rowdy Mermaid tossed
In complaints* filed by Tortilla Factory (owner of Kombucha Dog alcoholic kombucha), the above brands stand accused of understating their sugar content and exceeding the 0.5% abv threshold above which beverages are classified as alcoholic by the Alcohol and Tobacco Tax and Trade Bureau (TTB), meaning they must be taxed and labeled accordingly.
According to Tortilla Factory, third party lab testing using headspace gas chromatography combined with mass spectrometry had detected alcohol levels exceeding 0.5% in kombucha sold by all three brands.
It also speculated that sugar levels in these brands were higher than those listed on the label, although it did not provide hard data to support this claim, saying only: “Given the manufacturing process for a true kombucha product, as [Health-Ade’s, Humm’s, Rowdy Mermaid’s] products purport to be, it is highly unlikely that the sugar level is accurate.”
Sugar claims tossed (with leave to amend), alcohol claims to proceed
The sugar claims in the lawsuits were all thrown out on the grounds that there is no factual basis for the allegations beyond “mere suspicion,” although Tortilla Factory has been given leave to re-submit these claims with more detail in the cases vs Humm and Health-Ade.
The alcohol claims, however, were allowed to proceed vs Humm and Health-Ade, with judges arguing that at this stage at least, the plaintiff had made a case that inaccurate alcohol labeling on their wares (which are merchandised next to healthy/functional non-alcoholic beverages) could cause injury to Tortilla Factory (which merchandises Kombucha Dog in the alcohol set because it is over 0.5% abv).
Judge John A. Kronstadt also found no good reason to stay or dismiss the case vs Humm on primary jurisdiction grounds (Humm had argued that courts should leave this to the TTB because there’s no single universally agreed-upon testing methodology yet).
According to Kronstadt, the issue “is not whether Humm used the correct method in testing its kombucha, but whether Humm deliberately misrepresented its kombucha as a non-alcoholic product. False advertising claims are frequently decided by federal courts.”
Judge Michael Fitzgerald also rejected Health-Ade’s argument that Tortilla Factory should have tested its products with all scientifically valid methods. (Should Health-Ade be able to show that its kombucha is consistently below 0.5% using different scientifically validated methods to those deployed by the plaintiff, he said, it can always file a motion for summary judgment.)
Is this a matter for the courts?
However, in a September 13 order throwing out a near-identical case filed by Tortilla Factory vs Rowdy Mermaid Kombucha with no leave to amend, Judge Manuel Real said the doctrine of primary jurisdiction did in fact apply here.
“There appears to be a need to resolve the appropriate methodology for testing and labeling alcohol content in kombucha, which is better left to the expertise of the TTB rather than the courts.”
Which tests should firms use for measuring the abv (alcohol by volume) of kombucha?
According to Gary Spedding, PhD, at Brewing and Distilling Analytical Services, LLC, multiple testing methods for kombucha show surprisingly consistent results, making it, he claims, unlikely that there would be significantly different readings for the same product between, say, GC, HPLC, NMR and Density Meter/Near-Infrared Alcohol detection: "The most variation you typically see is .2%."
"There is rampant speculation in the industry that some components in Kombucha prevent the accurate determination of alcohol," said Dr Spedding. "This is in spite of the fact that several approved and official methods give similar results. Preliminary tests in our facility with spiking of known amounts of alcohol into Kombucha samples indicate no masking of this added alcohol when measured via densitometry and an NIR instrument.
"Our testing shows that many kombuchas are in the 0.875% to 1.5% abv range and some are above this level. Nothing is preventing accurate readings in our opinion with official methods of analysis."
Asked about GCMS [gas chromatography, mass spectrometry) testing in particular, he said that if anything, this method very slightly under-report alcohol content, so if testing using this approach shows products to be at 1% abv or more, then companies need to address this asap.
While fermentation in the bottle is an issue for kombucha if the cold chain is broken, many products are already above the .5% range from the outset, he claimed. "Lots of them we have tested were like that [well above .5%] from day one."
Attorney: The TTB says you may use any scientifically valid method to test abv in kombucha
LevatoLaw attorney Stephen Weisskopf - representing Tortilla Factory - told FoodNavigator-USA he was baffled by Judge Real’s ruling given that Kronstadt and Fitzgerald clearly felt the courts were well suited to address such cases.
He added: “We respectfully disagree with Judge Real. This kind of thing is exactly what courts are supposed to decide on a daily basis, issues of deceptive advertising. The federal requirements are as plain as day, if you have more than 0.5% alcohol, you have to disclose that.”
As for kombucha testing methods, he said, “The TTB doesn’t specify a standardized test for kombucha. If you go to their website (K18, 19), it says producers may use any scientifically valid method, and yet the judge decided he can’t rule on the case because he has to wait for the TTB.”
He added: “We’re using a test [Headspace GC/MS] that the KBI [non-profit Kombucha Brewers International, of which Humm, Health-Ade and Rowdy Mermaid are all members] recommends. It's also about to be approved by the AOAC [Association of Official Agricultural Chemists]."
- Rowdy Mermaid CEO Jamba Dunn, told us in April: "We control ethanol throughout the process to ensure we are in line with federal FDA and TTB compliance, which requires the product to remain below .5% throughout the entire life of the product.
"We also work with two local laboratories to ensure the security of our tests at a monthly interval, and we work with a national laboratory to provide an additional layer of regulatory assurance. We have a contractual agreement with the manufacturer of our ethanol testing equipment to calibrate and check our equipment against at least one additional testing protocol to map any deviations in the equipment against the multiple layers of testing as the tolerances of variance are extremely narrow. We have been random tested by the FDA as well as by third party auditory agencies.
"As vocal advocates of genetic testing, we are building an in-house genetic bench to better understand the conditions under which bacterial strains mutate their DNA. Earlier this year, we took part in a project to genetically test our product and build a library of genetic snapshots to map transitions in yeast and bacteria and metabolites, as well as their effect on the respiration of mitochondria affecting ethanol production."
- Humm Kombucha told us in August that it had developed a patent-pending process to keep alcohol levels in its kombucha consistently below 0.5% regardless of whether bottles fall out of the cold chain: The end result is that our kombucha is live and raw and the alcohol is completely controlled, even if it’s not refrigerated for a week. We’ve basically figured out how to retain the health benefits and be compliant.” Read more HERE.
- Health Ade Kombucha CEO Daina Trout recently told FoodNavigator-USA that she was "very confident in our process [for controlling alcohol]."
None are commenting specifically on pending litigation.
“The traditional recipe for kombucha calls for fermenting one gallon of tea with one cup of sugar. If fermented properly and for long enough, the resulting beverage will contain about 6 grams of sugar per 8 oz of tea (not sweet), and contain about 1.4% abv.”
Kombucha Dog (Tortilla Factory)
Kombucha: A legal minefield?
According to defense attorneys contacted by FoodNavigator-USA in the wake of a series of consumer class action complaints against kombucha brands earlier this year, plaintiffs’ attorneys are increasingly eyeing up the kombucha category, given the lack of a clear definition of what kombucha actually is, a lack of clarity over ‘raw’ claims, concern over sugar and alcohol levels, and confusion over probiotic claims. Read more HERE and HERE.
*The cases are: Tortilla Factory, LLC v. Rowdy Mermaid Kombucha LLC, United Natural Foods Inc, United Natural Foods West Inc, 2:18-cv-02984; Tortilla Factory, LLC v. Humm Kombucha LLC et al 2:17-cv-09092, and Tortilla Factory, LLC v Health-Ade 2:17-cv-09090. Tortilla Factory, which is represented by Stephen D Weisskopf at LevatoLaw LLP, alleges breaches of California’s unfair competition and false advertising under the Lanham Act.
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
