TAMPA, Fla. (Legal Newsline) - Tiny bottles of water flavoring don't need to include the words "artificial flavors," Walmart says in response to a recent class action lawsuit.
The company filed its motion to dismiss Sept. 6 in a case brought in Florida federal court in May by plaintiff Robert Thompson and attorneys William Wright and Spencer Sheehan. The suit claims malic acid used in Walmart's water enhancers is synthetic, despite the label promising "Natural Flavor With Other Natural Flavors."
Walmart says the plaintiff can't even show the malic acid is a flavoring agent.
"Although Plaintiff alleges that Walmart uses malic acid 'to provide the tangy, sweet and tart taste peaches are known for,' that bare-bones allegation does not establish that malic acid provides the product with its 'characterizing' peach flavor - as Plaintiff must plausibly allege to establish that it acts as an 'artificial flavor,'" the motion says.
"To the contrary, Plaintiff openly admits that malic acid is the 'predominant' acid in a wide range of fruits, including apples, cherries, grapes, pears and watermelons. Given that admission, as well as Plaintiff's generalized allegation that malic acid provides a 'tart and tangy taste,' it is far more plausible that it acts as a 'flavor enhancer' or a 'pH balancer' - which are not 'flavors' and do not require an 'artificial flavor' disclosure under the applicable FDA regulations."
The suit says "natural flavor" is the fifth listed ingredient by weight, while malic acid is listed third. It says the enhancers contain DL-Malic acid not found in peaches or other fruits because it is derived from petroleum.
Walmart argues it never promised the enhancers would be free of artificial flavors, only that they include natural flavors. Plus, it says, Thompson can't show he has suffered an injury.
"Regardless of whether the malic acid in the product acts as a 'flavor,' and regardless of what the FDA regulations do or do not require, Plaintiff's allegations establish that he received exactly what he paid for - a convenient, shelf-stable, liquid beverage enhancer that makes plain water taste like peach tea," the motion says.
The motion cites a recent Florida federal court ruling over the lack of real lemon in Publix's lozenges.