Cohasset man sues over Ocean Spray Cran Pomegranate Juice, not because it exists but because he says it has artificial flavors

A Cohasset resident and a New Yorker are seeking millions of dollars from Ocean Spray because its products advertise themselves as being free of "artificial flavors and colors" when they contain malic and fumaric acid made in petrochemical plants.

In a lawsuit filed in US District Court in Boston, lawyers for Michael Froio of Cohasset and Mikhail Surman of New York are seeking to become lead plaintiffs for Ocean Spray consumers across the country they say were similarly deceived.

Froio says he spent time between 2014 and 2017 buying unspecified numbers of containers of Ocean Spray 100% Apple Juice, Ocean Spray Cran Pomegranate, Ocean Spray Cherry, Ocean Spray Cran Grape, and Ocean Spray Cran Apple between 2014-2017 from "Target, Stop & Shop, Shaw’s Supermarkets, Tedeschi Food Shops, and other retail stores in and around Cohasset, Massachusetts and other neighboring cities and towns" and that he did by relying on product labels vouchsafeing the drinks as free of anything artificial:

The language "No High Fructose Corn Syrup, Artificial Colors or Flavors" is placed in a box-like feature with a contrasting color behind the lettering to ensure it stands out to the consumer. Plaintiffs also saw the pictures of fruits, water, and fields on the front packaging, which - in the context of the labeling "No High Fructose Corn Syrup, Artificial Colors or Flavors" - reinforced the impression that the Products did not contain artificial or synthetic colors or flavors. Plaintiffs purchased the Products at a substantial price premium and would not have bought the Product had they known that the labeling they each relied on was false, misleading, deceptive, and unfair.

The pair add they would return to Ocean Spray products in a Cohasset or New York minute "if Defendant changed the composition of the Products so that they conformed to their labeling and marketing," but that until that happens, they and other Ocean Spray consumers and their attorneys deserve compensation - at a minimum $5 million worth.

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Comments

Curious, do you post these to

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Curious, do you post these to point out that people are suing companies to stop them to misleading consumers, or to make fun of these torts? I only ask because this was a huge misinformation campaign by the republican party in the 1990s that got most in the public against torts, meaning potentially important cases (like the McDonalds coffee case that a good chunk of the electorate still thinks was illegitimate) are put at risk because people only highlight the more ticky-tacky ones. Baby/bathwater, et cetera.

Though what is the downside to forcing big companies not to mislead customers even on trivial matters?

I know, I grew up on the

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I know, I grew up on the South Shore, and sent them invoices for years at a job I had as a long-term employer of mine had a very close relationship with them. But what does that matter? They're "local" in the sense that their headquarters are here, but Ocean Spray doesn't really exist as a traditional company, but a grower cooperative. Most of their supply chain is out of state. Cranberries are a commodity, after all.

Did I say they weren't local?

I've worked in this field,

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I've worked in this field, actually with the plaintiff's lawyers I'll try to give some context on these:

Essentially, class action lawsuits like these are bounty hunting; they deal with cases where a lot of people have been wronged just a little, but where damages add up. While the plantiff class does get compensation, normally free product or the like, the big incentive is the lawyer's reward, again the bounty hunting bit.

This isn't necessarily a bad thing.

The reason class action exists is exactly because bad actors would otherwise use the "nobody is being hurt much" excuse to bullshit everywhere; try to pack in an ounce less than advertised, game the MPG of a car, so long. Nobody is hurt enough to notice, but the offender gets to profit big. That is, unless a lawyer can take them down and collect their bounty.

Now, the merits of each case are going to be different. I can say I've seen ones that seem silly, and ones you'd call much more serious deception. I've also seen many that were explored but no lawyer actually filed because they had no chance of convincing the judge, again of varying moral merits.But in each case the logic is the same; to keep producers honest, the law incentives private specialists to seek out deception and argue it.You could have government investigations do this too, but that would be big staff getting paid regardless of results. You might prefer that, European countries do, but again the logic is the same. Specialists to focus on deception that individuals alone would not notice, in the hope of preventing nickle and diming

I also note the McDonald case is a different thing; there you have one plaintiff who had a serious enough complain against her individually, not class action. That world can be similar, but i cant really speak to it.

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Downsides

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1. The cost of defending these types of suits are usually exorbitant, so it's in a company's interest to settle, even if they would win in the end. It's legal extortion.

2. Often the 'settlement' is just a bunch of coupons sent to people, which never get used.

3. Most of the benefit of these suits goes to a small handful of lawyers, not to the public at large. It's common for the plaintiffs' lawyers to take one-third of the settlement, with the rest spread out among the class. Eg, if it's a million-dollar settlement, the lawyers take $333,333, and $666,667 gets spread out among the thousands or millions of people who bought Ocean Spray products in the last __ years.

I touched on 2 and 3 already,

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I touched on 2 and 3 already, the plaintiff awards are there but not really the point. I'll focus on 1

Yes, most settle. In fact, its highly irrational to go to jury trial. However, that doesn't mean there inst real defense in what's called the class certification stage. This stage is a bit of a war dance, where the sides strut out their arguments, see the relative strength and then negotiate. The courts also require the plaintiff to estimate damages, which is a pretty substantial requirement. You can't just toss out a number, you have to relate the amount to your theory of damages and the number of customers affected. Parties will bicker over this a lot, and its big worth for both parties.

So while, yes, fighting a case is expensive, its expensive for both sides. The plaintiff has little reason to waste time and resources on weak cases so its going to focus on the big and/or egregious cases. It's also pretty easy and cheap to throw out a blatantly wrong complaint, and embarrassing to the plaintiff. Overall, while you could argue the merits of each case, I dont think I've ever seen a truly frivolous one proceed.

Why I Post

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It's a lawsuit posted by a local(ish) man in a local court that I found interesting. If you scroll through the lawsuits pages (you might have to go a few pages deep), you'll notice I've covered a number of these consumer-deception lawsuits over the years, but only the ones posted by local people in Boston federal court.

Yes, I'm parochial that way. You'll notice that consumer-deception cases are only a small number of the cases I've written about.

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Amusingly, these guys prefer

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Amusingly, these guys prefer to go to a California court when possible; high population is your friend in this case. I guess Ocean Spray is Local enough they had to stick to NY and MA

Ocean Spray

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As a juice consumer, I'm disgusted by this silly lawsuit, The legal costs will be passed down to the customers thanks to these two clowns. What's next, suing the heiress to the O'Henry candy bar family?

That's not how pricing works

The retail price has little to do with the manufacturing cost. They price the juice based on what they think customers are willing to pay which is often the same as other juices in the same category.

If successful this lawsuit will reduce the earnings of Ocean Spray by a tiny percentage. It won't affect the price.

It might stop them from using deceptive labels and if that happens we all win.

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yes and no

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All manufacturers will see this reflected, no matter how remotely, in insurance and other costs. It's Ocean Spray today - Coke tomorrow and Pepsi the next day.

All businesses have to make allowances for claims -sill and otherwise through either reserves or insurance.

Your disgust is misplaced

As a juice consumer, I'm disgusted by this silly lawsuit,

More disgusted than you are by Ocean Spray lying to you about what's in the can you're buying from them?

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The label doesn't say "no artificial anything"

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It just says no artificial colors or flavors. And apparently that's true if the malic acid & fumaric acid aren't being used for coloring or flavoring. It wouldn't take more than a few seconds, while pondering a purchase, to look at the required listing of ingredients on the label to determine whether there's anything artificial contained in the product.

As far as deceptive labeling goes, this is tame compared to cable or cellular service ads.

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You got a good point on the

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You got a good point on the additives being for other things possible, but simple saying "its on the ingredient list" doesn't fly if you're making the deceptive claim in big , color letters.

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Malic acid and fumaric acid

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are used to make things sour, so they are being used for flavoring. On the other hand, are they artificial? I'd love to hear a debate in court over what "artificial" actually means. The base meaning is "made by art or artifice". Does that mean that anything that's cooked is artificial? If Ocean Spray was to make a drink more sour by adding lemon juice, presumably that would not be considered artificial. What if they concentrated the lemon juice by boiling it down? What if they filtered it to make it less cloudy? What if they subjected it to various other manipulations by adding powders and beating it with hammers and reciting incantations? At what point would it become artificial?

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I'm guessing ...

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The part about being made from petrochemical feedstocks is what the question will hinge on.

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It's been a while since you

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It's been a while since you took a chemistry class, but I assume you know that malic acid doesn't come with a 'natural' or 'artificial' label. Chemistry is not a historical science, and acidds don't 'remember' their origin. C4H6O5.doesn't care.

So

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it's guilt by association with petroleum? Or is it that terrifying suffix, "chemical" that condemns it?

I think that we label things made by processes that we understand "natural", and those made by means that are opaque to us, "artificial". It's a distinction that seems natural, but in reality is entirely artificial.

Alternatively, we could RTFM

All rules are, at the end of the day, arbitrary. Why does a batter get three strikes, and not two or four?

The definition of "artificial flavor" may be arbitrary, but it's not fuzzy..

The term artificial flavor or artificial flavoring means any substance, the function of which is to impart flavor, which is not derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish, poultry, eggs, dairy products, or fermentation products thereof. Artificial flavor includes the substances listed in 172.515(b) and 582.60 of this chapter except where these are derived from natural sources.

https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/cfrsearch.cfm?f...

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Actually there's a reason they get 3 strikes

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The game already takes 3-4 hours - if you gave 4 strikes it would take like 5 hours per game.

If you gave only 2 strikes - players wouldn't get as many hits and some of the thrill of the game would be gone as it gets harder to score multiple runs in and inning.

I'd argue that it's often sublime - but there's usually some rationale behind the rules of sports and other things.

This guy should take a big

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This guy should take a big gulp of unsweetened cranberry juice. That'll brighten his day, guaranteed.

Once upon a time I bought a little bottle of "Simply Cranberry" juice. I thought it tasted weird, like grape juice, not cranberry. Lo and behold on the ingredients list...grape juice. I didn't sue them, just never bought it again

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Ironically

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the additives in question are malic and fumaric acid, which (as identified further upthread) are meant to make things taste MORE sour. Something tells me they wouldn't need artificial sour-ers (sour-ners? I'm coming up empty here) if they used more than a dash of actual cranberry juice in their Cranberry Juice Cocktail. Like you said: grape juice as far as the eye can see, and then the "juice" has so much sugar in it that they have to hit it with artificial ingredients to tone down the sweetness.

Didn't I just read the

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Didn't I just read the cranberry juice companies aren't doing very well to begin with, due to the crops being not too productive?

Idiots from NY and Malic Acid

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This is nothing but a -- "get $ for no productive effort" enterprise -- and its an example of the prime reason that Churchill inveighed against the founders of the US being "Lawyers escaping their just punishment"

from the Wiki on Malic Acid

Malic acid was first isolated from apple juice by Carl Wilhelm Scheele in 1785. Antoine Lavoisier in 1787 proposed the name acide malique, which is derived from the Latin word for apple, mālum—as is its genus name Malus

Malic acid is the main acid in many fruits, including apricots, blackberries, blueberries, cherries, grapes, mirabelles, peaches, pears, plums, and quince and is present in lower concentrations in other fruits, such as citrus

Wherever it comes from -- farm or factory --- it's the same chemically -- 2-Hydroxybutanedioic acid

and as they say "Caveat Emptor"