Portion of Proposed Class Action Lawsuit Against Bai Brands to Proceed

5A federal judge has ruled that part of a false advertising lawsuit filed against Bai Brands, maker of Bai5 Antioxidant Infusions beverages, can move forward. Reuters and Michelman & Robinson, LLP (whose blog covers a variety of legal-related topics) reported on the news last month.

Filed on May 6, 2014 in the U.S. District Court, Eastern District of New York, the proposed class action lawsuit alleges that Bai has misled consumers by making claims about the antioxidant content and value of coffeefruit in its products. The lawsuit states the U.S. Food and Drug Administration prohibits nutrient content claims for antioxidants, with the exception of certain vitamins such as vitamin C. Bai has used phrases including “Antioxidant Packed” and “Antioxidant Goodness Inside” to describe its beverages. The plaintiffs claimed that consumers were deceived into paying a premium for what they thought was a healthier product.

In response to an email inquiry about the lawsuit, Bai Brands CFO Ari Sorokin wrote that “as you might expect, we have been counseled not to respond to your inquiry during litigation.” Sorokin noted that “class action lawsuits are nothing new to the beverage industry, or to Lee Litigation who initiated the suit.”

Based in New York, Lee Litigation describes itself as a “full service litigation law firm” with “a focus on class action lawsuits.” It currently represents plaintiffs in several recent lawsuits involving beverage brands, including Inko’s, Starbucks, and Pom Wonderful, and operates classactioninvestigation.org, a website which lists 26 “active investigations” into consumer product brands in a variety of categories.

In March, Bai filed a motion to dismiss the lawsuit, which was filed on behalf of plaintiffs in California, New York and Pennsylvania. U.S. District Judge Haywood Gilliam in the Northern District of California declined to dismiss the case in its entirety, agreeing with plaintiffs that a “reasonable consumer” could be misled into thinking that phrases like “Antioxidant Packed” means that the beverages provide a “good source” of antioxidants. As a result, he deemed the prohibited nutrient content claims in the lawsuit to be valid.

However, he stated that plaintiffs had not provided the court with specific instances of consumer deception, and asked their attorneys to include that information in an amended complaint.

Gilliam did dismiss the plaintiffs’ claims that Bai deceived consumers by simply stating that its beverages include antioxidants. He said that the statements could  “only reasonably be read to assert the undisputed fact” that the products do contain antioxidants, and that such marketing claims are allowed under FDA regulations.

The case is one of a number of proposed class action lawsuits that have targeted antioxidant claims made by beverage companies, including recent litigation filed against Millennium Products, Inc., which produces GT’s Kombucha. Honest Tea, owned by the Coca-Cola Co., continues to battle a lawsuit alleging that its Honey Green Tea product falsely markets the antioxidant content of the beverage. In January, a federal judge refused to the dismiss the lawsuit, which was filed in November, 2013, citing sufficient evidence that Honest Tea’s product labels might violate federal regulations, according to Law360.com. Antioxidant claims are also at the heart of the aforementioned lawsuit involving Pom Wonderful, with plaintiffs accusing the manufacturer of making “deceptive and misleading” claims regarding the source of antioxidants in Pom Tea products.