Raise your hand if you believe Kraft Mac and Cheese mix doesn’t contain additives, artificial flavors, or preservatives. Well, Kraft Heinz is being sued in a class action lawsuit claiming that the company lied when it said that its Kraft Macaroni and Cheese product contained “No Artificial Flavors, Preservatives, or Dyes.” What are the alleged ingredients Kraft lied about, and who would bring such a suit?
The first thing you need to know is these types of big lawsuits filed against food companies are a dime a dozen and it is almost certain that the supposed person to initiate the lawsuit did NOT actually initiate it. Instead, some law firm started it and tacked a person’s name on it, either with or perhaps, as has happened, without their knowledge. I do not know if this is true of the lawsuit against Kraft Heinz, but it is often true and quite typical.
This lawsuit may well be settled eventually in the plaintiff’s favor and many people will get an email saying that Kraft owes them several dollars if they jump through sufficient hoops. Others will never hear of the great big opportunity to enrich themselves by a quarter cup of coffee. The big money, of course, goes to the lawyers.
It is also likely that the court will argue the “reasonable consumer” standard. Most of these cases come down to what a reasonable consumer would be expected to believe. Would a reasonable consumer believe that Kraft Macaroni and Cheese doesn’t contain any artificial ingredients?
The Big Business of Food Company Lawsuits
These types of large class action lawsuits against food companies (including fast food companies) have seen a sharp rise in recent years. In 2020, the number of such suits rose by 30%, and between 2020 and 2022, there were 200 of them. Most of these suits concern false advertisements. As a general rule, they fall into one of four categories:
- Claims of mislabeling
- Overstated health claims
- False nutrient content claims
- False product size claims (and “slack fill” claims)
The largest percentage (~35%) of these lawsuits are in California, which provides a good environment for such litigation. The rest are in New York, Florida, Illinois, and other scattered places. While there are hundreds of suits in any given year, the majority of them are filed by a fairly small number of law firms. Some of these firms specialize solely in these food-oriented class-action suits and, if you read the complaints, you’ll find that they read almost like ‘form letters’ with the same wording cut and pasted from one suit to the next, and amazingly, the same individuals as class representatives!
You, the person reading this article, are probably a ‘member’ of such a lawsuit right now. You may be a member of more than one. There are so many such suits that if you buy and eat food, you are probably part of one. This means lawyers are claiming that they represent you in court without your knowledge.
To be clear, the lawyers shopped for, and in many cases, created the suits out of whole cloth (pun intended). They rarely are ever motivated by true anger over consumer fraud. You may have never once thought that Kraft Mac & Cheese didn’t contain preservatives, but if you’ve eaten some, these lawyers are claiming you have been misled.
Most of these suits cause the court to fall over laughing and are quickly dismissed early in the process. Some go for a bit longer before being dismissed or privately settled, and others go on for years and years. The majority of the cases concern claims of ‘natural’ in food advertising. The use of the term natural on food labels is not regulated by the FDA. There is no official definition as to what this term should mean. However, the FDA is actively considering such regulations and because of this, some courts have placed such suits on hold.
Another big target is “slack fill” in food packaging. These suits are perhaps the most ridiculous as they challenge the unneeded space in food packages. All of the products inform customers about the actual amount of product in volume or weight so these firms are suing over the idea that a package should be full regardless of the amount of product intended to be sold. Many times, product settles over time, so the package may have been full to begin with. Regardless, most of these cases get thrown out. One such case involved Starbucks’ iced coffee supposedly using ice that reduces the amount of coffee! That’s right, they sued over iced coffee containing ice.
But what you should know, dear reader, is that some of these lawsuits result in multi-billion dollar settlements that go straight into the pockets of lawyers. You, the consumer, receive little to no benefit.
The lawyers in this case sought ‘injunctive relief’ but the court denied it meaning that the court does not think that Kraft needs to change its labeling since ‘now the public knows.’ So, the supposed “lies” will continue while the lawyers make their money. So, I ask, is this about consumer fraud? Because if it is about consumer fraud, then someone should be ordering the company to change its labels.
Do you think the lawyers really care about label changes? The same law firm, which will go unnamed, brings other suits of this type. They sued a spring water company over microplastics, claiming that the bottles did not contain “100% natural spring water” because they also contained microplastics. The court concluded that the FDA’s definition of “spring water” preempted their state law claims and that no reasonable consumer would conclude that a bottle of water labeled as 100% natural spring water was not water because it contained microplastics. The case was dismissed. You can learn more about microplastics in bottled water here.
This law firm also won a multi-million settlement against DoorDash. Undoubtedly, they are involved in many others. They are joined by just a handful of other firms that bring almost all of such cases.
I hope you understand the point I am making. What are the chances that a multitude of lone consumers, feeling duped by some food companies, bring their claim to the one in a small group of firms every single time? And what are the chances that these same consumers end up doing this several times?
Kraft Macaroni & Cheese Ingredients Complaint
Back to the case at hand. What are these terrible ingredients that have so alarmed our intrepid lawyers that they sprung into action on behalf of millions of consumers? Citric acid and sodium phosphates.
Citric acid, is, of course, a natural ingredient that is often used as a food additive. Among other things, it acts as a preservative by providing an acidic environment and helps to provide a tart flavor to sodas, juices, candies and other products. It was originally isolated from lemon juice by a Swedish chemist named Carl Wilhelm Scheele. However, it is too expensive to manufacture citric acid by extracting it from fruit.
The citric acid used in Kraft Macaroni & Cheese is a “synthetic” citric acid. The lawsuit claims this is an ‘unnatural’ form of citric acid. There is, of course, no such thing as unnatural citric acid. Supernatural citric acid made by a warlock with some rocks has not been accomplished yet. The manufacture of citric acid is the main source worldwide. It is undoubtedly in many of the foods and beverages you buy weekly. Just because an ingredient is produced using synthetic means doesn’t mean that the ingredient itself is unnatural.
Most of the citric acid used in foods, beverages, and dietary supplements is made through the fermentation of crude sugars like molasses or corn starch with molds such as Aspergillus niger or any one of several candida yeast species. There is some case report evidence that citric acid made with Aspergillus niger may cause allergic reactions in some individuals as well as other inflammatory conditions.
Should you be concerned? Manufactured citric acid is generally recognized as safe (GRAS) by the FDA. Besides a few case studies that concerned problems with individuals, there is scant clinical evidence that there are any widespread safety issues with citric acid in foods. You probably have more to fear from the acid coming into contact with your teeth, which can erode enamel, than having an allergic or inflammatory reaction. And, unless you overconsume acidic beverages and don’t practice adequate dental hygiene, you have little to fear at all.
The other ingredient of concern in Kraft Macaroni and Cheese is sodium phosphate. There are many sodium phosphates used in foods but the one listed on the label is sodium tripolyphosphate (STPP). This is specifically used as a sequestrant and texturizer in foods and as such helps with shelf life, emulsification, color preservation, etc.
Although natural phosphates found in foods are incompletely absorbed, these of added phosphates are easily absorbed and can therefore increase phosphate levels in the body significantly. High phosphate levels can be harmful to health. There is also evidence that they are associated with an increased risk of cardiovascular events as well as a predictor of mortality in chronic kidney disease. However, the amount of sodium phosphates used in foods is quite low and while there may be some health concerns, this concern is moderate, at best. Intake can be managed by limiting the consumption of processed foods and checking ingredient listings.
The biggest culprits containing added phosphates are processed meat, ham, sausages, canned fish, baked goods, and soft drinks (cola and other sodas).
In both cases, Kraft claimed that they were not being used as preservatives. This is technically possible. They have other functions in foods but Kraft well knows that they also, sometimes through these other actions, act as preservatives.
A Similar Citric Acid Case
Perhaps informative is the SDNY court’s decision on a similar citric acid claim brought against the Snapple beverage company. The lawsuit claimed that the claim by Snapple that its beverages were “All Natural” was false and misleading because they contained synthetic citric acid, an “an industrially produced, synthetic ingredient” and used vegetable and fruit juice concentrates for coloring (which sounds natural enough).
The court decided that the plaintiff’s claim about critic acid was too general and did not provide any showing that the beverages did indeed contain synthetic citric acid, especially since no testing was performed to confirm this. And, even if the product did contain synthetically produced citric acid, the court concluded that it was not clear that any reasonable consumer would consider the ingredient unnatural. Aspergillus niger itself, after all, is natural, said the court, and, as I concluded above, just because a product is produced using synthetic agents doesn’t mean the product itself is unnatural. The plaintiff failed to demonstrate how the citric acid used in the beverages if it was synthetic, differed chemically from “natural” citric acid.
As far as the vegetable and fruit juice concentrates used for color, the plaintiff claimed that a reasonable consumer would not expect an “all natural” juice product to contain added natural colors. The court rejected this preposterous claim, saying that a reasonable consumer wouldn’t object to a natural product containing other natural ingredients. The case was dismissed. 1Kaixin Fan, Cort Lannin. “Sdny Court Dismisses False Advertising Lawsuit Alleging ‘All Natural’ Is Misleading Based on Alleged Use of Synthetic Citric Acid.” Inside Class Actions, 22 Apr. 2024, www.insideclassactions.com/2024/04/22/sdny-court-dismisses-false-advertising-lawsuit-alleging-all-natural-is-misleading-based-on-alleged-use-of-synthetic-citric-acid/#more-12367. Will the Kraft Macaroni and Cheese case die a similar death?
To be clear, the present lawsuit has nothing to do with concern for your health. It was brought by lawyers who claim you have been misled. This does not lead to you being less misled in the future. In other words, they do not CARE if there are harmful ingredients in the product.
Much more could be accomplished by producing public-facing information exposing the claimed harmful ingredients and demanding the company change its practices. Instead, a class action was brought that will cause no changes and may lead to a few thousand customers receiving a couple of bucks. The biggest benefactors, as usual, are the lawyers. These suits bring huge splashy headlines and plenty of public outrage, but little else other than an increase in food costs to offset the constant litigation.
Food companies faced with these lawsuits rarely have any need to change their practices. If a settlement is reached, they pay out and go about their business. The lawyers make millions and move on to the next target. Meanwhile, the public reacts and moves on, with no useful information about the true nature of the problem or lack thereof.
