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From Health Law Daily, September 5, 2018

‘Not pasteurized’ label claim okay on juice products subjected to high pressure processing

By Rebecca Mayo, J.D.

A product label claim that a juice product has not been pasteurized but has undergone high pressure processing (HPP) is not false or misleading. A district court judge dismissed a consumer’s claims that two cold-pressed juice products manufactured by Drink Daily Greens, LLC carried false or misleading labels. The court found that the products provided clear disclaimers that the products underwent HPP, so a reasonable consumer could not reasonably infer any other label claims implied that the products had not undergone processing beyond the cold-press process (Campbell v. Drink Daily Greens, LLC, September 4, 2018, Glasser, I.).

The label. A consumer claimed that he paid a premium for two juice products based on several purported misrepresentations on the products’ labels and on the manufacturer’s website. According to the consumer the products falsely claimed to be cold-pressed, not pasteurized, fresh or have the quality of freshness, never heated, and to have 4.5 pounds of produce pressed into every bottle. The consumer argued that all of these claims were materially false or misleading because the products undergo HPP. The consumer filed claims against the manufacturer for deceptive business practices and false advertising under state law and common-law fraud.

Pasteurization vs. HPP. HPP is an FDA-approved method for eliminating harmful pathogens and bacteria. In this process, bottles are placed into a cylindrical vessel and pressurized at levels of up to 87,000 pounds per square inch. While there is no binding regulation that defines what pasteurization means for juice, the FDA has defined pasteurization of juice in non-binding guidance. The guidance defines pasteurization as "a heat treatment sufficient to destroy vegetative cells of pathogens." In the same guidance, HPP is identified as a "non-thermal treatment for juice," and in a separate guidance HPP is described as an alternative to pasteurization. Federal regulations that address pasteurization in other contexts all define or refer to it as a thermal process, which aligns with the dictionary definition that describes it as the act or process of heating a food or beverage to a specific temperature for a period of time to kill microorganisms.

Decision. The consumer claimed to rely on the manufacturer’s explanation on its website, namely that products are subject to HPP, "an alternative to pasteurization" and describes the process, and the bottle which included a bold-text disclaimer indicating that the products were subject to HPP. The court found that this clear provision of information regarding HPP renders entirely implausible the claim that the "not pasteurized" representation "suggests to a reasonable consumer that the products are not subject to an additional treatment process."

Further, the court found that no reasonable consumer could have been misled into believing that the products did not undergo any additional processes after being cold-pressed because of the HPP disclaimer on the bottle. Therefore, the reasonable consumer would not mistake the cold-pressed claim to be a claim that the juice had not been subjected to other processes. Additionally, a reasonable consumer would not be misled to believe that the claims that the products were "fresh" and "never heated" implied that the products never underwent any additional processes after being cold-pressed. Finally, the claim that the products contain 4.5 pounds of produce pressed into every bottle are not misleading because the actual weight of the product is included on the label and in the nutrition facts.

The case is No. 16-CV-7176.

Attorneys: Joshua Levin-Epstein (Levin-Epstein & Associates) for Gerard Campbell. Jonas Noah Hagey (BraunHagey & Borden LLP) for Drink Daily Greens LLC.

Companies: Drink Daily Greens LLC

MainStory: TopStory CaseDecisions FDCActNews FoodNews FoodStandardsNews LabelingNews NewYorkNews

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