Background
Mark Trammell purchased Wiley Wallaby Very Berry Licorice, manufactured by KLN Enterprises. The product’s packaging stated it was “Naturally Flavored” and “Free of Artificial Colors & Flavors.” Trammell filed a putative class action in the Southern District of California alleging that the product contained DL malic acid—an artificial flavoring derived from petroleum—making those representations false and misleading under the California Consumers Legal Remedies Act (CLRA).
Trammell supported his claims with laboratory testing by Krueger Food Laboratories, which used industry-standard methodology to detect the “D isomer” of malic acid (present only in the artificial form). The district court dismissed the complaint with prejudice on two grounds: failure to meet Rule 9(b)’s heightened pleading standard for fraud, and failure to plausibly allege that a reasonable consumer would be misled.
The Court’s Holding
The Ninth Circuit reversed on both grounds. On the Rule 9(b) issue, the panel held that Trammell’s allegations satisfied the who, what, when, where, and how requirements. He identified the specific laboratory, the testing date, the methodology, and explained precisely why the malic acid in the product was artificial. The district court’s reliance on three non-precedential trial-court decisions was misplaced because those cases involved far less detailed allegations.
On the reasonable consumer standard, the panel held it was plausible that a consumer would be deceived by a product claiming to be “Free of Artificial Flavors” when it allegedly contains an artificial petroleum-derived flavoring. The court rejected the argument that the ingredients list “disclosed” artificial ingredients, noting that a reasonable consumer—not being a chemist—cannot determine from a list of ingredient names which are artificial. The court also rejected the argument that because the product was a “brightly colored, shelf-stable candy,” consumers would expect artificial ingredients, because Trammell’s claim was specifically about flavors, not colors or preservatives.
Key Takeaways
- Specific laboratory testing details—lab name, date, methodology, qualifications—satisfy Rule 9(b)’s heightened pleading standard for food labeling fraud claims in the Ninth Circuit.
- A “free of artificial flavors” label can mislead a reasonable consumer even where the ingredients list is fully disclosed, because ordinary consumers cannot identify which listed ingredients are artificial.
- The “reasonable consumer” standard under the CLRA does not require consumers to have scientific or industry knowledge; a consumer is not expected to know that “malic acid” can be either natural or petroleum-derived.
- FDA regulatory classifications (e.g., “flavor enhancer” vs. “flavoring agent”) do not control the reasonable consumer analysis under California law.
- Product appearance (colorful candy) does not defeat a deception claim specifically about flavoring as opposed to coloring.
Why It Matters
This published decision strengthens the hand of plaintiffs in California food labeling class actions—a booming area of litigation. Companies that use “no artificial” claims on packaging must now contend with the reality that merely listing ingredients does not insulate them from deception claims if those ingredients have artificial variants indistinguishable by name alone. The ruling means that detailed lab testing at the pleading stage can overcome Rule 9(b) and survive a motion to dismiss.
For food and beverage manufacturers selling in California, this decision signals that broad “free of artificial” marketing claims carry real litigation risk if any ingredient—even one classified by the FDA as something other than a “flavoring agent”—is derived from a synthetic process. Companies should audit labeling claims against actual formulations, particularly for ingredients like malic acid, citric acid, and vanillin that exist in both natural and synthetic forms.