Health Law Daily Wrap Up, LABELING AND PACKAGING (FOOD, DRUGS & MEDICAL DEVICES)—N.D. Ill.: Consumer class action over lemon content in Polar Corp.’s seltzer fizzles, (Mar 23, 2023)

By Martin A. Steinberg, J.D.

A statement about the presence of an ingredient is not a promise about the amount of the ingredient. Further, in context of lemon water, labeling the water as lemon merely tells the consumer what flavor they can expect.

A federal district court in Illinois dismissed a purported class action challenging the amount of lemon added to lemon seltzer water manufactured and marketed by Polar Corp. A consumer sued Polar alleging that the packaging and container labels created the false impression that the seltzer water contained more lemon flavoring that actually existed. She further alleged that the natural flavor was actually highly processed lemon ingredients. The court held that a reasonable consumer would not have been misled because no claims were made about the amount of lemons in the product (Matthews v. Polar Corp., March 22, 2023, Seeger, S.).

Background. The consumer bought Polar’s lemon seltzer water on more than one occasion between July and September 2021. The packaging advertised the product as lemon seltzer water. The word “lemon” appeared prominently, and the packaging highlighted the word in a rectangle of yellow, to underscore the fruity flavor. The labeling also showed pictures of lemon wedges immersed in a light blue background with bubbles. The packaging and the can highlighted the product’s natural taste; “Refreshingly Natural” appeared in the lower left of ’s packaging, and at the top of the can. The nutrition facts appeared on the right-hand side of the label. Below the nutrition facts, it read: “contains carbonated water. natural flavors.” Above the nutrition facts, the label stated that the product “CONTAINS NO JUICE.” The court noted that while it was not easy to see this disclaimer because it was light-colored text immersed in a sea of yellow, it was there.

Instead of seeking a refund from the store where she purchased the item or contacting Polar directly about her complaint, consumer filed suit in federal court. The complaint contained six counts: (1) a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA); (2) a violation of comparable statutes from other states; (3) breaches of express and implied warranties of merchantability, and a violation of the Magnuson Moss Warranty Act; (4) negligent misrepresentation; (5) fraud; and (6) unjust enrichment. Consumer had previously withdrawn a breach of contract claim. She filed on behalf of consumers from Iowa, Arizona, Ohio, Alabama, Louisiana, West Virginia, New Jersey, Massachusetts, Michigan, Georgia, Utah, Delaware, New Hampshire, Maine, Vermont, Texas, Arkansas, Virginia, and Oklahoma.

Consumer presented two theories of liability. First, the consumer alleged that the product’s labeling implied that it contained an appreciable amount of lemon ingredients and that, based on the labeling, she expected the seltzer to have more lemon than it actually had. While the consumer admitted that the seltzer contained lemon ingredients, she felt that it contained less lemon than consumers would expect. She further alleged claims that the labeling was misleading because it gave the consumers the mistaken impression that the product contained a greater amount of lemon ingredients.

Second, the consumer complained about the type of lemon flavor used. Polar used oils, extractives, and essences of lemons, that it concentrated, compounded, synthesized, and mixed with solvents and additives, to create lemon flavor. The consumer argued that the “Natural Flavors” label failed to tell consumers that the product’s taste was not mostly from lemons, but a mix of essences from a variety of fruits and vegetables that are combined in a laboratory, with additives and solvents, into highly concentrated formulas.

The consumer alleged that Polar profited from its false and misleading representations about the amount and type of lemon. Polar sold the cans at a premium price that was higher than it would have been sold for absent the misleading representations and omissions. She claimed that she never would have bought the product if she had known how little lemon was in the seltzer or at least she would have paid less for it.

ICFA claim. The consumer’s ICFA claim failed because Polar did not make any representations about the amount of lemon in each can. To adequately plead an ICFA claim, it is not enough to allege that the product misled a particular plaintiff. Instead, what matters is how a reasonable consumer would read the packaging. The reasonable consumer standard requires a probability that a significant portion of the general consuming public acting reasonably in the circumstances, could be misled. In some cases, even a true statement can lead to a claim, if the statement creates a false impression.

The court noted that this case did not involve a situation where the can said “lemon,” and there was no lemon. In fact, the complaint conceded that the lemon seltzer actually contained real lemon. A statement about the presence of an ingredient is not a promise about the amount of the ingredient. The court further noted that lemon is a flavor, and labeling the water as “lemon” tells the consumer what flavor they can expect when they open a can. Likewise, Polar never said anything about how it created the lemon flavor.

Remaining claims. The court held that the remaining claims shared the same vulnerability in that the complaint failed to sufficiently allege that a reasonable consumer would be misled by the product’s labeling. The remaining claims depended on the allegation that the seltzer’s labeling was false, deceptive, or misleading.

As with the deficiency in the ICFA claim, the breach of warranty claims also failed because the complaint’s allegations were not enough to show that a reasonable consumer would have been misled. A breach of the implied warranty of merchantability occurs if the product is not “fit for the ordinary purposes for which such goods are used.” Further, a consumer’s ability to state a claim under the Magnuson Moss Warranty Act ‘is dependent on the existence of an underlying viable state-law warranty claim. Accordingly, without a viable state-law claim, consumer’s claim under the Magnuson Moss Warranty Act also failed.

The court noted that the negligent misrepresentation and common law fraud claims suffered from the same problem. These claims failed because the complaint did not adequately allege that a false or deceptive statement was made. Finally, under Illinois law, unjust enrichment is not a separate cause of action, but is a condition brought about by fraud or other unlawful conduct. Thus, the unjust enrichment claim failed because all of consumer’s other claims failed.

Other defects. First, Illinois law requires consumer give pre-suit notice to the seller before filing an express warranty claim, which she did not do. Second, under Illinois law, an implied warranty claim can only be brought against the immediate seller, which Polar was not. Finally, under Illinois law, a plaintiff cannot recover purely economic damages in an action sounding in negligence or strict liability in tort. Accordingly, the economic loss doctrine prevented consumer from suing for her economic loss under her negligent misrepresentation claim. The consumer did not allege any other type of loss.

Conclusion. The court granted Polar’s motion to dismiss.

The case is No. 1:22-cv-00649.

Attorneys: Spencer Sheehan (Sheehan & Associates, P.C.) for Jeanne Matthews. Clair Wischusen (Gordon Rees Scully Mansukhani LLP) for Polar Corp.

Companies: Polar Corp.

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