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.
The rise and rise of Bai Brands
Founded by Ben Weiss in 2009, Bai Brands has grown explosively in the past three years, and recently secured a $15m investment from Dr Pepper Snapple Group (which struck a nationwide distribution deal with Bai in late 2013). It generated revenues of $5.2m in 2012; $17m in 2013, $50m in 2014, and is aiming for $100m+ in 2015.
The New Jersey-based firm - which introduced a carbonated version of its flagship drink to its line-up (Bai Bubbles) in late 2014 and a new Antiwater line this summer - is stocked in leading retailers nationwide from Target and Safeway to Costco.
In a note on Dr Pepper this morning, Wells Fargo Securities noted that its $15m investment in Bai was for a "minority equity stake of 3% in Bai Brands, implying a $500m valuation".
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.”
What are antioxidants?
Antioxidants are compounds found naturally in many foods that help neutralize harmful ‘free radicals’ which are naturally produced in our bodies, but are claimed to cause cell damage. Antioxidants are also added to foods as preservatives (eg. vitamin E can stop fat from oxidizing and going rancid). However, some nutrition scientists argue that the generic term ‘antioxidant’ as a marketing term should probably be banished from food labels, along with claims about ORAC (oxygen radical absorbance capacity) values.
While ORAC tests measure the ability of a compound to scavenge free radicals in a petri dish, for example, they don’t provide much insight into how that compound will behave in the human body, Lenore Arab, PhD, MSC, professor of internal medicine at UCLA, told delegates at the World Tea Expo earlier this year. Indeed, many antioxidants are poorly absorbed by the body and then rapidly excreted, she noted.
This doesn't mean that the antioxidants in tea leaves or coffee fruit aren't beneficial, she stressed, just that firms might be better advised to focus on establishing which specific phytonutrients and related metabolites actually gain access to appropriate cells in the body to exert biological effects.
For example, it could be that the health benefits of tea flavonols have nothing to do with their ‘antioxidant’ powers, and are more to do with their ability to improve endothelial function and inhibit platelet aggregation, she speculated.
*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'.