FoodNavigator-USA reported that two plaintiffs dismissed their class action lawsuits against Greek yogurt manufacture Chobani, Inc. in order to combine forces as part of a third lawsuit pending in the Northern District of California. At that venue, the combined Plaintiffs filed a Second Amended Complaint on October 10, 2012 targeting Chobani’s allegedly improper use of the term (1) “evaporated cane juice” to describe sugar in the ingredient list and (2) “natural” to describe a product that uses natural color additives.
Specifically, Plaintiffs broadly allege that Chobani responded to consumers’ desire for natural and nutritious foods by “actively promoting the naturalness and health benefits of its products.” On this point, Plaintiffs cite virtually every statement made by Chobani on its labels, advertising and website relating to the “purported naturalness, nutritional, and health qualities of its yogurt products.” Plaintiffs then allege that such claims are false and deceptive, and the yogurt products misbranded, for two reasons.
First, Plaintiffs allege that Chobani lists “Evaporated Cane Juice” as an ingredient “despite the fact that the FDA has specifically warned companies not to use this term” and, further, that this (1) “the ingredient in question is not a ‘juice,’” and (2) “evaporated cane juice” is not listed in the FDA’s Standard of Identity for yogurt (21 CFR § 131.200) as an allowed nutritive carbohydrate sweetener. This alleged “deception” is “material,” Plaintiffs allege, because approximately one-third of the product’s calories comes from this ingredient, i.e., “processed sugar with no nutritional benefit.” It is unclear, however, whether all of those calories come from the “evaporated cane juice” or if some is naturally occurring lactose (i.e., “milk sugar”).
Second, Plaintiffs contend that “[s]ome of Chobani’s Greek Yogurt flavors are unlawfully labeled as ‘all natural’ and/or ‘only natural’ [because they are] artificially colored and/or containing unnatural ingredient including, by way of example, the pomegranate flavor which artificially colors the yogurt product with ‘fruit or vegetable juice concentrate.’” In this regard, Plaintiffs note that color additives under 21 C.F.R. 70.3(f) are “artificial colors” and include “natural” ingredients “such as beet juice [when] deliberately used as a color, as in pink lemonade.” Notably, however, Chobani does not appear to have made a blanket “all natural” claim but instead stated that its products contain “only natural ingredients” and contained “no artificial sweeteners” and “no preservatives.” This qualification will likely be crucial as the case moves forward.
You can read the Second Amended Complaint here.