LaCroix à la Cockroach

October 22, 2018

The National Beverage Corporation –makers of the wildly popular LaCroix Sparkling Water – was hit with a potential class action lawsuit on October 1st.  The class action complaint was brought on behalf of Lenora Rice who demands a jury trial for violations of express warranties, unjust enrichment, and violations of the Illinois Consumer Fraud act.

The chief issue giving rise to the violations come from LaCroix’s use of “all-natural,” “100% natural,” “innocent,” “naturally essenced,” and “always 100% natural” [collectively referred to as “all natural”] as part of their label and marketing for LaCroix products. Rice alleges that the use of “all-natural” is misleading and confuses consumers into thinking the product is natural, and this misleading marketing has allowed LaCroix to gain popularity. These representations and phrases are found on LaCroix’s product labels, packaging, and its website.

Rice claims that LaCroix products are made of substances that are not “all-natural” because they contain substances like ethyl butanoate, limonene, linalool, and linalool propionate. These substances are declared to be synthetic compounds by the Food and Drug Administration. In addition, the complaint asserts these substances are synthetically created and are “added to consumable goods to make those goods taste or smell a certain way.” These substances can also be harmful and dangerous for consumption. The complaint states that “limonene causes kidney toxicity and tumors[,] linalool is used as a cockroach insecticide[,] and linalool propionate is used to treat cancer.

Rice states LaCroix is aware that its products contain these synthetical substances. Furthermore, Rice argues the “[d]efendant is well-aware that consumers purchase LaCroix based on the mistaken belief that it is ‘natural’ and that consumers hold this belief because Defendant’s misleading packaging and advertising efforts.” Moreover, the complaint mentions that the “[d]efendant purposely makes these misleading representations as part of a scheme to induce American consumers into buying LaCroix products.

The use of “all natural” and the resulting sales and popularity are the basis for the lawsuit’s causes of action. For the express warranty violation, the complaint asserts that Defendants formed an express warranty that their product was “natural” and breached that warranty. As for the unjust enrichment claim, Rice argues LaCroix’s misrepresentations of their product being “all natural” increased sales and revenue that would not have happened if the product was known to have artificial and synthetic ingredients. Lastly, for violating the Illinois Consumer Fraud Act, the plaintiff alleges LaCroix’s misrepresentations were made intentionally, and were deceptive.

Rice asks the court to certifying the class under Federal Rules of Civil Procedure 23, enter judgment in favor of the plaintiff and proposed class, award all possible damages available under law, order defendants to return any “ill-gotten funds,” an injunction requiring defendants to cease unlawful and deceptive activities, and award class expenses and reasonable attorneys’ fees.

The National Beverage Corporation has denied these allegations and believes the lawsuit is intended to be “false, defamatory, and intended to intentionally damage the company’s reputation.” The company issued the following statement:

[N]atural flavors in LaCroix are derived from the natural essence oils from the named fruit used in each of the flavors. There are no sugars or artificial ingredients contained in, nor added to, those extracted flavors.

LaCroix also tweeted:

We’ve heard your comments and want to address all the misleading allegations

LaCroix sparkling water is a healthy beverage. All ingredients in LaCroix are natural. Allegations that claim otherwise are false and trouble us much as they trouble you.

Please stand with us as we defend our beloved LaCroix

In addition, according to FoodNavigator – an online news source for the food industry – the substances mentioned in the complaint, ethyl butanoate, limonene, linalool, and linalool propionate, can be derived from both natural and synthetic sources.  Also, LaCroix lists only two ingredients in their Sparkling Water products: carbonated water and natural flavor. The complaint does not specify how Rice believes the synthetic substances are even in the products or whether they are created naturally or derived synthetically. But, according to Beaumont Costales – the law firm who filed the class action lawsuit – states that “[i]n fact . . . testing reveals that LaCroix contains a number of artificial ingredients, including linalool, which is used in cockroach insecticide.

As for the harmful effects of the synthetic products, according to Popular Science –– “just because an ingredient is used in insecticides doesn’t mean it is poisonous or dangerous.” They mention that the ingredients mentioned in the complaint are actually not considered dangerous.

National Beverage Corporation has yet to file an answer, but we can presume that they will rely on some of the arguments being made by FoodNavigator and Popular Science. If the class action does proceed and the plaintiffs are successful, the decision will have a devastating effect on LaCroix. In addition, it will give food and beverage companies pause in using terms like “all natural” on their packaging. The outcome might even provide consumers with some much-needed clarity.

Image Source: LaCroix Water

You can read the entire complaint on Westlaw: 2018 WL 4901761.

The docket number for the case is: 2018-CH-12302.