Bai Brands is the target of a class-action lawsuit claiming that its use of a synthetic form of malic acid means the product should be labeled as "artificially flavored," according to Food Navigator. The ingredient is used as a flavor enhancer or flavoring agent to add tartness and has been deemed generally recognized as safe by the U.S. Food and Drug Administration.
The lawsuit, Branca v. Bai Brands, LLC, was filed in U.S. District Court in California on April 19 by attorney Ronald A. Marron, whose law firm has filed similar complaints against Kellogg's Pringles chips, PepsiCo's Frito-Lay, Sunny Delight and Campbell Soup's V8 Splash.
A spokesman for Dr Pepper Snapple Group, which owns Bai Brands, told Food Navigator, "We stand by the claims and information on our labels. There’s no merit to this lawsuit, and we will defend against it vigorously."
Bai Brands lists both "natural flavors" and "malic acid" on product labels. Whatever fruit the variety contains and "with other natural flavors" is also printed on the front of the can or bottle. However, the company doesn't disclose the purpose of malic acid.
The ingredient occurs naturally in some fruits — including apples, watermelon and pears — but the kind Bai Brands uses is manufactured synthetically. According to the lawsuit, it "is in fact manufactured in petrochemical plants from benzene or butane — components of gasoline and lighter fluid, respectively — through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts."
Drink makers use malic acid to mask the aftertaste of artificial sweeteners, balance sweetness with acidity, and function as a preservative. Diet soft drinks sometimes contain malic acid, although it isn't always specifically listed.
This lawsuit could be seen as a symptom of the growing consumer demand for transparency from manufacturers of foods and beverages about how their products are made. A study last year from Response Media found that nine out of 10 respondents wanted transparency in product ingredients and sources, along with more in-depth information.
As the complaint puts it, "Defendant’s packaging, labeling, and advertising scheme is intended to give consumers the impression that they are buying a premium, all-natural product with only natural flavoring ingredients instead of a product that is artificially flavored. [This] is deliberately intended to give consumers false the impression that the products are composed only of natural fruits and fruit juices and not artificially flavored as they actually are.”
Food and ingredient makers are closely watching these recent cases — some of which, like the Kellogg and Frito-Lay ones, judges have already refused to dismiss — because the outcomes could set precedents about how they formulate and label products in the future.
Because the food companies won't comment on pending litigation, it's hard to tell how they intend to frame their defense. In Frito-Lay's motion to dismiss, company lawyers argued before a federal judge in California that the plaintiffs hadn't proven the label on its salt and vinegar chips would "deceive a reasonable consumer." The judge rejected that argument, saying it first must be determined whether the company is obliged to label its product as containing an artificial flavor. Also, she wrote that malic acid's absence on the Food and Drug Administration's list of artificial flavors doesn't mean that it isn't one.
If Bai Brands or other manufacturers using synthetic malic acid must include "artificial flavoring" claims on their packaging, it's possible consumers would steer clear of the products and chose others with cleaner labels or those containing more natural ingredients.
Consumer research supports such an outcome. According to Innova, 75% of U.S. consumers say they check ingredient labels, and 91% think the ones with recognizable ingredients are better for them. And, in a Nielsen study from 2014, more than 60% said it was important in making purchasing decisions at the store that products not contain artificial colors and flavors.