Naked Juice, which is owned by PepsiCo (“Naked”), filed a Motion for Summary Judgment in a pair of class action lawsuits that claim its “No Sugar Added” labels on coconut water and orange juice are misleading and deceptive. Naked’s argument is that the U.S. Food and Drug Administration (“FDA”) already cleared use of the “No Sugar Added” statement and the California court should give deference to the FDA’s interpretation of its own regulation.  Naked’s support for this argument is a letter from the FDA to the nonprofit Center for Science in the Public Interest (“CSPI”), which Naked says expressly authorizes 100 percent juice products like its coconut water and orange juice to use the “No Sugar Added” statement.

In response, plaintiffs argue that the letter is neither guidance nor an advisory opinion, and therefore, it is inadmissible. They maintain that, in order to meet the criteria for a “No Sugar Added” label, the product has to resemble or substitute for a food that contains added sugar.  Since coconut water and orange juice do not normally contain added sugars, the claim is deceptive.

Back in September 2017, the court rejected Naked’s Motion to Dismiss on the basis that the plaintiff adequately alleged the label was deceptive. While the judge was interested in the FDA’s position, she refused to take judicial notice of the FDA’s letter to CSPI because the court was not provided with an authenticated copy.  Now that the letter has been authenticated, the court must address the issue head on.

Takeaway: We will continue to monitor the case and provide an update once the court issues its decision.  In the meantime, this case should serve as a reminder that advertisers face an uphill battle in obtaining early dismissal of cases involving health claims, particularly in California.