Bai Brands under fire over 'antioxidant-packed' claims as judge allows false advertising lawsuit to proceed

The lawsuit vs Bai Brands* - filed in the Northern District of California - is one of several high-profile false advertising cases over antioxidant claims filed in the last couple of years ( Twinings , GT’s Kombucha ), and highlights the risks facing food marketers keen to promote their free-radical busting credentials. Improper nutrient content claims? In Bai's case, the plaintiffs are not arguing that Bai5 beverages (which contain a ‘proprietary antioxidant blend’** of organic coffee fruit extract and white tea extracts) do not contain antioxidants, but that they don’t meet the legal criteria for making antioxidant nutrient content claims. Currently, the FDA allows such claims (eg. ‘good source of antioxidants’) on products containing a meaningful amount of nutrients with well-established antioxidant properties (eg. vitamin C and E) for which a reference daily intake (RDI) has been established. (eg. To be a 'good source of antioxidants’ a product must contain at least 10% of the RDI of the antioxidant in question.) The problem for Bai is that there is no established RDI for coffeefruit or white tea. And while Bai does not explicitly state that its products are a ‘good’ or ‘excellent’ source of antioxidants, the phrase, ‘antioxidant-packed’ certainly implies as much, allege the plaintiffs. Judge: A defendant cannot escape liability simply because it uses a synonym While US district judge Haywood s. Gilliam Jr didn’t buy all of the plaintiffs’ arguments, he agreed that the ‘antioxidant-packed’ phrase was problematic as it implied an amount or level of antioxidants, and therefore strayed into the territory of nutrient content claims. In a July 13 order allowing most claims against Bai to proceed, he said: “ A defendant cannot escape liability simply because it uses a synonym [for 'good/excellent source of' claims].” However, he was comfortable with other terms employed by Bai such as ‘antioxidant infusions’ and ‘antioxidant goodness inside’, which he felt did “ not plausibly characterize, either expressly or implicitly, the amount or level of antioxidants contained in the products”. The plaintiffs have until August 24 to file a second amended complaint. Bai Brands: Lawsuits like this one have become common occurrences So how will Bai proceed, given that defendants often choose to settle at this point in a lawsuit? Chief financial officer Ari Soroken told FoodNavigator-USA: “ Bai is not in mediation, and would not agree to an individual settlement that provided no protection against additional class action lawsuits making the same claims. “Bai is responding to the current situation with care. We have already taken steps to change our labels. For some time, they have not displayed the word 'packed' and currently display specific antioxidant information.” He added: "Lawsuits like this one have become common occurrences against food and beverage businesses and this case against Bai is nothing unique. We are proud of the product we make and confident in the authentic nature of our brand.” FDA: An antioxidant claim is a nutrient content claim only if the level of antioxidants is described While a 2008 FDA guidance document says marketers are on safe ground as long as they don’t imply a level or amount of antioxidants from sources for which there is no established RDI (eg. tea polyphenols such as EGCG), brands such as GT’s Kombucha have got into legal hot water over phrases such as ‘ powerful antioxidants'. In the GT lawsuit, which is still moving through the courts (2:15-cv-01801), GT’s lawyers argue that the term 'powerful' amounts to ‘puffery’ (which is not actionable): “At no point… do plaintiffs describe how the term ‘powerful’ makes any specific representation about the actual quantity of antioxidants in a food product.” *The case is Dorinda Vassigh et al v. Bai Brands LLC: 3:14-CV-05127. The plaintiffs allege violations of California’s Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law. **Editor’s note: Bai’s proprietary antioxidant blend was recently changed to include Vitamin C. Likewise, Bai5 cans and bottles now state: Total antioxidants: 200mg (polyphenols 150mg) 'like a cup of green tea'.

Bai Brands under fire over 'antioxidant-packed' claims as judge allows false advertising lawsuit to proceed

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