FOOD BEVERAGE D I G E S T SPRING 2024 | 7 Gummy Supplements— Manufacturers of Gummy Supplements Stuck with Citric Acid Suits McLaurin v. CVS Pharmacy Inc, No. 24STCV05082 (Cal. Sup. Ct. Feb. 29, 2024). Salguero v. Natrol LLC, No. 24STCV05309 (Cal. Sup. Ct. Mar. 1, 2024). As our loyal readers know, sticky situations are on the rise for defendants that include “no preservatives” label claims on products containing citric acid. Over the past year, manufacturers of cough syrup, sour fruit snacks, canned tomatoes, fruit juice, mac n’ cheese, baby food, gelatin snacks, Bloody Mary mix, goldfish crackers, and energy drinks have all faced challenges to “no preservative” or “no artificial preservative” claims based on plaintiffs’ allegations that citric acid is an artificial preservative. Most of these cases ended in voluntary dismissal, presumably after the parties settled. These complaints draw from a predictable playbook—citric acid is almost always described as being synthetically produced by “black mold,” and plaintiffs frequently cite a four-subject observational “study” (co-authored by a plastic surgeon and a lawyer) to support their assertion that “manufactured citric acid” is associated with negative health outcomes. While this fearmongering may be scary enough to make even the strongest of gummies wiggle, plaintiffs don’t stop there. The complaints include references to FDA regulations, webpages, and warning letters to support the allegation that citric acid functions as a preservative regardless of whether it was added to the product for that purpose. The latest targets of plaintiffs’ citric acid crusade include gummy dietary supplements. In two recently filed suits against manufacturers of gummy supplements, plaintiffs allege violations of California consumer protection laws and breach of express warranty on behalf of putative classes of California consumers. The complaints follow the citric acid playbook to a T. While the Salguero case recently settled, only time will tell whether the remainder of these gummy claims will stick a settlement or melt under the heat of a motion to dismiss. Angela Spivey +1 404 881 7857 angela.spivey@alston.com Andrew Phillips +1 404 881 7183 andrew.phillips@alston.com Rachel Lowe +1 213 576 2519 rachel.lowe@alston.com Samuel Jockel +1 202 239 3037 sam.jockel@alston.com Alan Pryor +1 404 881 7852 alan.pryor@alston.com Troy Stram +1 404 881 7256 troy.stram@alston.com Contributing Authors Taylor Lin +1 404 881 7491 taylor.lin@alston.com Jamie George +1 404 881 4951 jamie.george@alston.com Samantha Burdick +1 213 576 1190 sam.burdick@alston.com Jonathan Hermann +1 404 881 7275 jon.hermann@alston.com Amanda Newton Wellen +1 404 881 4809 amanda.wellen@alston.com Sheena Hilton +1 404 881 7763 sheena.hilton@alston.com
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