In a complaint* filed in Cook County Illinois on October 1, plaintiff Lenora Rice – represented by law firm Beaumont Costales LLC – alleges that LaCroix sparkling waters (which have two ingredients: carbonated water and natural flavor) are “manufactured using non-natural flavorings and synthetic compounds,” but described on boxes as ‘all natural’ and on its website as “always 100% natural.”
“In fact [alleges Rice] LaCroix contains, among other things: ethyl butanoate, limonene, linalool and linalool propionate. The above chemical compounds are synthetically created and added to consumable goods to make those goods taste or smell a certain way.”
Her complaint does not state on what basis she makes these allegations (eg. did attorneys conduct tests at a third party lab? If so, which LaCroix products were tested, when, using what methods?), and attorneys for the plaintiff have not responded to questions asking how they are sure that the substances referenced were in the products, and whether they were ‘synthetically created’ as opposed to naturally sourced from plants.
National Beverage Corp: 'The natural flavors in LaCroix are derived from the natural essence oils from the named fruit used in each of the flavors'
In a statement issued the same day, National Beverage Corp stated that the “natural flavors in LaCroix are derived from the natural essence oils from the named fruit used in each of the flavors. There are no sugars or artificial ingredients contained in, nor added to, those extracted flavors.”
It adds: “All essences contained in LaCroix are certified by our suppliers to be 100% natural… The lawsuit provides no support for its false statements about LaCroix’s ingredients. All LaCroix product labels include an ingredient statement indicating each product contains carbonated water and natural flavors. National Beverage stands by that ingredient statement and the fact that all the flavor essences in LaCroix are natural.”
“The lawsuit and the companion release that was published this afternoon were false, defamatory and intended to intentionally damage National Beverage and its shareholders.”
Kantha Shelke: The substances in question all can be derived from natural or synthetic sources
According to flavor industry sources contacted by FoodNavigator-USA, the four flavoring substances identified in the complaint are naturally occurring and could be produced in a manner that could be consistent with FDA’s definition of natural flavor at 21 CFR 101.22(a)(3) although they can also be produced synthetically.
Asked whether it would be possible to determine whether flavor ingredients are from natural or synthetic sources by submitting samples of LaCroix beverages for analysis, Kantha Shelke, Ph.D., CFS, food scientist and principal at food science and research firm Corvus Blue LLC and adjunct professor, food safety regulations, at Johns Hopkins University, told FoodNavigator-USA:
“Only if the ultimate molecule under consideration is different, say in its configuration or proportion of different configurations, when synthesized. What complicates the matter, however, is that a very small amount is used and the signals of these molecules can be confounded by other ingredients in the product formulation.
“These [substances named in the complaint] all can be derived from natural or synthetic sources. Natural source could be either plant/ fruit extracts or bio-fermentation," added Shelke, who is not involved in the case.
For example, she said: “When a formulator uses ethyl butanoate [also known as ethyl butyrate] extracted from naturally occurring fruits such as apple, apricot, and banana, it is considered to be natural, as per 21CFR Section 101.22 (3). When ethyl butanoate is synthesized from the condensation reaction of ethanol and butyric acid, the label should declare it synthetic.”
Currently, while there is no detailed legal definition of 'natural' or 'all natural' on food labels, natural flavors are defined in law, noted Dr Shelke: “A definition of ‘natural flavors’** is the only promulgated regulation concerning the term ‘natural.’ The regulation contains a list of chemical substances that a natural flavor ingredient may contain, as well as a list of sources in which the chemical substance may originate.”
But she added: “One of the hallmarks of this regulation is that in defining natural, the rule only refers to ingredients affecting flavor as natural; it doesn’t specify the extent to which an ingredient that does not affect flavor is natural or unnatural.”
Attorney: Can the plaintiff prove that La Croix used synthetic versions of these ingredients?
So what do food law attorneys make of the case?
William Dance, an attorney at law firm Tucker Ellis (who is also not involved in the case), told us that the complaint was focused on whether the overall beverage would be considered all natural or 100% natural by a reasonable consumer, not about what’s permitted in natural flavors:
“If the plaintiff can prove, either through science or through legal discovery of La Croix’s sourcing, that La Croix used entirely synthetic versions of these ingredients, plaintiff will have a strong argument that labeling the resulting flavored sparkling waters as ‘all-natural’ and ‘100% natural’ would be deceptive to a reasonable consumer, the standard under the Illinois Consumer Fraud Act.
“On the other hand, if La Croix can establish that its ingredients were derived fairly straightforwardly from plant sources where they exist naturally, the plaintiff will have to argue that the extent or nature of the processing rendered the ingredients no longer ‘all-natural’ or ‘100% natural.’”
While there is a legal definition of 'natural flavors,' there is no legal definition of ‘natural’ or ‘all natural’ for the purposes of food labels, beyond FDA guidance issued in 1993 noting that, “[FDA] has not objected to the use of the term [natural] on food labels provided it is used in a manner that is truthful and not misleading and the product does not contain added color, artificial flavors or synthetic substances.”
Although the FDA has maintained radio silence on the ‘natural’ issue since its November 2015 call for comments on natural claims, FDA commissioner Dr Scott Gottlieb said in a speech in March 2018 that there was a lack of clarity around the term 'natural,' adding: "We’ll have more to say on the issue soon."
'Natural flavors are on the radar for scrutiny'
Wendel, Rosen, Black & Dean partner William Acevedo added: “I think that it is fair to say that natural flavors are on the radar for scrutiny. It’s a foreseeable offshoot of the ‘All Natural’ complaints, and I think that plaintiff’s attorneys are drilling down ever deeper into labels and ingredient lists to find infractions.
“While suppliers often guard their natural flavors formulations as proprietary information, the prudent manufacturer should insist on a written representation that a natural flavor does not contain any synthetic sub-ingredient from the supplier before it makes any ‘natural’ claim.
"Even so, a manufacturer is ultimately responsible for ensuring that its labeling is not false or misleading in any particular, which requires a clear understanding of what it can defensibly put on its product labels. That’s the lesson to be learned from these lawsuits.”
*The case is Lenora Rice et al v National Beverage Corp d/b/a LaCroix Sparkling Waters. Case # 2018-ch-12302 filed in Cook County Illinois. The plaintiff alleges violations of the Illinois Consumer Fraud Act, breach of express warranties, and unjust enrichment, and seeks to represent a class comprising all individuals in Illinois who purchased LaCroix water in the last four years.
**There is a legal definition of natural flavors (21CFR101.22 (3)), which the FDA says means “the essential oil, oleoresin, essence or extractive, protein hydrolysate, distillate, or any product of roasting, heating or enzymolysis, which contains the flavoring constituents derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, seafood, poultry, eggs, dairy products, or fermentation products thereof, whose significant function in food is flavoring rather than nutritional.”