By Ken Schachter
The parent company of AriZona Iced Tea is facing two federal lawsuits that challenge its “no preservatives” and serving-size labeling.
The suits are seeking class-action status.
A lawsuit filed in October in U.S. District Court in Manhattan says the Woodbury company “deceptively” labels beverages as having “no preservatives,” when many of its products contain citric or ascorbic acid, substances that Marc Meyers, a food scientist engaged by the plaintiffs, described as preservatives.
The other case, filed in September in U.S. District Court in Central Islip, says that AriZona Beverages USA LLC and affiliate Beverage Marketing USA Inc. mislead consumers about the amount of sugar and number of calories in their beverages by using a serving size of 8 fluid ounces on its labels instead of the actual size of the container.
That lawsuit, filed by Michael Reese and George Granade of the Manhattan-based law firm Reese LLP, says that AriZona’s typical beverage size is 16 ounces.
The company makes a wide variety of iced tea and juice beverages, including Arnold Palmer Half & Half and Joltin’ Joe Espresso, a carbonated coffee drink.
Domenick Vultaggio, chairman and co-founder of AriZona Beverages, and his legal team did not respond to calls seeking comment.
Both lawsuits seek jury trials, unspecified monetary damages, legal costs and court orders demanding that the company change its practices.
C.K. Lee, of the Manhattan-based Lee Litigation Group, the law firm that filed the lawsuit about the “no preservatives” labeling, said companies need to be accountable for their products.
“People say, ‘You bought a 99-cent can of AriZona Iced Tea. Big deal.’ [But] if manufacturers think they can get away with a small lie, they’ll think they can get away with a big lie,” Lee said.
Calls to Reese LLP were not returned.
Joseph Campolo, managing partner at Campolo Middleton & McCormick LLP in Ronkonkoma, said many such class-action lawsuits have been filed against businesses he represents.
Such cases “usually get resolved in some sort of court-ordered mediation,” he said.
Alternatively, the court could decide not to certify the class, meaning “the case is basically over,” Campolo said.
In certifying a class, a court needs to determine that the plaintiffs filing a lawsuit represent a large number of others; have claims typical of the class; protect the interests of other class members; and have similar questions of law.
If the class is certified — a crucial point in such class-action lawsuits — the cases can be “highly lucrative,” for law firms, Campolo said. “But they have to have merit.”
He said law firms typically pursue such cases on a contingency basis, meaning they get paid only if the lawsuit is successful or generates a payout in an out-of-court settlement.
If the case does move forward and the court certifies that the class is valid, companies can face “tremendous expenses,” Campolo said.
Irina Manta, associate dean for research and faculty development at Hofstra University’s Maurice A. Deane School of Law, said there have been other legal cases involving serving size and allegations of deceptive practices, some involving breath mints and vitamin gummy bears.
In March 2013, a U.S. District Court judge in San Francisco decertified a class in a March 2010 lawsuit that charged AriZona deceptively promoted its products as “all natural” even though ingredients included citric acid and high fructose corn syrup.
Sotiria Everett, a clinical assistant professor in Stony Brook University’s Department of Family Population and Preventive Medicine’s Nutrition Division, said there’s an “ongoing debate” within the food industry and the Food and Drug Administration about the term “natural” on labels.
“There are two questions here,” she said. “Are these things safe to consume long-term? And what’s the best and most ethical definition of natural sources? That’s the back-and-forth continuously with the FDA.”
Everett said the “obesity epidemic” can be traced in part to the trend toward “supersized” food products. “People tend to eat what’s in front of them,” she said.
A February 2018 “nonbinding” recommendation for food manufacturers by the FDA defined “serving size” as the “amount of food customarily consumed … in one sitting for that food” and includes guidelines for dual-column labels providing calorie and nutrition labeling per serving and per container.