SAN DIEGO (Legal Newsline) - A judge has tossed the original version of class action lawsuit claiming the drinkers of alcoholic kombucha drinks are misled into thinking they are healthier than they are.
San Diego federal judge Gonzalo Curiel on Sept. 14 dismissed the case but is allowing plaintiff Albert Renn and his lawyers at Fitzgerald Joseph to file an amended complaint within 21 days.
The case was filed under claims of violations of California consumer protection laws. Otay Lakes Brewery makes Nova-brand alcoholic kombucha that contain up to 8% alcohol by volume.
They are labeled as "good for you" and as providing "health, balance and goodness." But the suit says even a low level of alcohol is bad for customers.
However, the class action lawyers failed to specify which of the approximately 15 Nova drinks their client purchased, leading Judge Curiel to toss the complaint for lack of standing.
Another problem is that the products do not have uniformity among their labels, making it wrong for Renn to pursue a class action against all of them over terms on only some of them, Curiel wrote.
Lastly, a claim for injunctive relief couldn't be sustained by Renn's wishes to purchase healthy drinks in the future.
"Plaintiff can ascertain whether Defendant's representations are true by reading the General Surgeon's warning as well as the alcohol content volume on the front label, and is not forced to rely on the accuracy of the 'good for you' and 'health, balance and goodness' labels," Curiel said.
"Plaintiff does not allege that he might by the products in the future if they are reformulated. As such, Plaintiff cannot plausibly allege he will be subject to future harm."
Renn claimed Otay knows consumers prefer and will pay more for products touted as healthy and that even a low level of alcohol can cause harm to health and increase risk of disease, including cancer.
He alleged he and other consumers who purchased Nova Kombucha would have paid less or not purchased the drinks at all if the labeling had not been false and misleading.