California Federal Court Dismisses False Advertising Suit Based on Malic Acid

In the latest false advertising decision regarding malic acid (see prior Inside Class Actions coverage here, here, and here), the Southern District of California dismissed with prejudice a plaintiff's claim that defendant falsely advertised that its licorice was "naturally flavored" because testing allegedly showed that the product may contain synthetic malic acid.

In Trammell v. KLN Enterprises, Inc., 2024 WL 4194794 (S.D. Cal. Sept. 12, 2024), the plaintiff alleged that defendant Wiley Wallaby falsely advertised that its Very Berry Licorice candy is "Natural Strawberry & Raspberry Flavored Licorice," "Naturally Flavored," and "Free of … Artificial Colors & Flavors." Plaintiff's amended complaint alleged that third-party testing revealed that the "D isomer was present in the Product purchased by Plaintiff." This was sufficient, plaintiff asserted, to state a claim that the candy used synthetic rather than natural malic acid-and that defendant's licorice was thus deceptively advertised as "all natural."

The court rejected plaintiff's claims on several grounds. First, the court held that plaintiff did not allege fraud with sufficient particularity: plaintiff's alleged testing only showed the possibility that the malic acid was synthetic, and did not otherwise describe the methodology or other details about the alleged testing. The court also observed that allegations as to defendant's "economic incentives" to use artificial malic acid or "common industry practice" did not suffice either. Without specific allegations showing that the licorice's malic acid was artificial, plaintiff's fraud claims failed.

Second, the court held that even if plaintiff could allege fraud with particularity, his allegations failed the reasonable consumer standard. According to the court, the public was not likely to be deceived by defendant's packaging: "nothing about this product-a brightly colored, shelf-stable licorice candy-would lead a reasonable consumer to conclude that Wiley Wallaby Very Berry Licorice is free of artificial ingredients when the product labels make no affirmative representations saying as such."

Third, the court denied plaintiff's request for injunctive relief for lack of standing. Plaintiff did not sufficiently allege that he intended to buy defendant's licorice again, and now that his testing revealed the possibility that the licorice contained synthetic malic acid, "there is no longer any risk that Plaintiff will be misled the next time he looks at a Wiley Wallaby Very Berry Licorice label."

The use of allegedly artificial malic and citric acid remains a focus for the plaintiffs' bar, but this is the latest in a string of helpful decisions holding plaintiffs to their burden to plead their claims with specificity and/or rejecting the premise of these claims outright.