On Thursday, Arizona Beverages USA LLC filed a motion to dismiss a Northern District of Illinois complaint alleging that the company in its labeling of Arnold Palmer drinks did not adequately represent the healthiness of the drink, which is labeled as a zero-calorie beverage.
The putative class action suit began in September when Kenneth Meyers filed a complaint seeking relief for himself and others who purchased the defendant’s Arnold Palmer drinks. It cited the Federal Food Drug and Cosmetic Act (FDCA), which establishes standards for labeling the calorie content of a beverage.
The drink is reportedly half tea and half lemonade, and was sold in three versions: zero-calorie, lite, and regular. The plaintiff reportedly purchased the drink many times and chose the drink because “zero calories” was featured on the can and in its advertising. However, the complaint said that the drink included 15 calories per can, but an item can only be labeled as zero calories if it has less than 5 calories. Meyers claims he would not have purchased the drink if he had known it was not zero calories. The drink was later rebranded to “diet” instead of “zero calories.”
The defendant’s motion and memorandum argued, among other reasons, that Meyers’ claims were preempted, that the complaint did not have a “plausible claim for relief,” and that the plaintiff failed to plead fraud or state a claim for the fraud. They also argued that the lack of pre-suit notice barred claims for warranty and claims under the Indiana Deceptive Consumer Sales Act.
Specifically, Arizona Beverages argued that the complaint did not state a claim for an FDCA violation based on its testing standards and that the plaintiff did not allege lack of calorie content based on that legal standard. The defendant’s preemption argument said that its labeling method is authorized under the FDCA.
In the motion to dismiss, the defendant also asked that if the motion was not granted that the court transfer the venue to the Eastern District of New York, which the defendant said is a “far more convenient venue” for the defendant, and for many of the currently unnamed plaintiffs in the putative nationwide class. The defendant also claimed that the New York court would lead to a faster end to the legal matter.
At least one other similar labeling lawsuit was filed against the company in the last month. James Prater claimed in another putative class action suit that the company’s Half & Half Iced Tea Lemonade wrongfully uses the term “lite” when it contains almost as many calories as Coca Cola.
Arizona Beverages USA is represented by McElroy Deutsch, Mulvaney & Carpenter, LLP and Saul Ewing Arnstein & Lehr LLP. Kenneth Meyers is represented by Edelman, Combs, Latturner & Goodwin, LLC.
