• The named plaintiff in a class action lawsuit filed in Illinois last year (Rice v. National Beverage Corp. d/b/a LaCroix Sparkling Waters, October 18, 2018) alleges that “all natural” labeling on LaCroix sparkling water is fraudulent because the sparkling water contains chemicals such as ethyl butanoate, limonene, linalool, and linalool propionate, which the plaintiff alleges are synthetic. The defendant manufacturer, National Beverage Corp., had the case removed to federal court and answered the complaint (denying the allegations) before seeking sanctions under Federal Rule of Civil Procedure (“Rule”) 11 for an allegedly frivolous complaint.
  • In addition to ruling against National Beverage Corp. on procedural grounds (i.e., unsanctionable state court conduct cannot be brought within the scope of Rule 11 by the plaintiff’s answering a motion to dismiss), the court also found the defendant failed to substantiate arguments that the lawsuit is frivolous. Regarding National Beverage Corp.’s assertion that 21 CFR 182.60 (“Synthetic flavoring substances and adjuvants”) refers only to synthetic versions of the listed compounds, and not to naturally derived versions of the substances, the court found “nothing obviously misguided and unreasonable about plaintiff’s view of what the regulation asserts, that two substances used in defendant’s sparkling water, limonene and linalool, are synthetic.”
  • As previously noted on this blog, the lawsuit against LaCroix and other cases that are centered on the use of “natural flavors” signify a new focus of scrutiny for plaintiff’s lawyers. A critical issue for resolution is whether the degree of processing and not just plant derivation is what distinguishes a synthetic from a natural substance and, if so, what level of processing brings an ingredient outside of the realm of ‘natural.’ That issue has not yet been addressed in this case but presumably will need to be as the lawsuit progresses.