But the plaintiff Daryl De Keczer – represented by Pratt & Associates – has until the end of August to file a second amended complaint in this nationwide suit. She originally claimed that Tetley tea product labels and website statements amounted to misbranding and deception under Californian and Federal laws.
In the amended August 13 2012 complaint at issue filed in the US District Court, Northern District of California, De Keczer listed allegedly ‘Misbranded Food Products’ “included but not limited to”: Tetley Classic Blend Black Tea, British Black Tea, Pure Green Tea, Iced Tea Blend Tea and Iced Tea Mix.
Tea claims under attack
She attacks Tetley USA’s promotion of tea’s supposed nutritional and health benefits: emphasis on flavonoid and polyphenol antioxidant content both on its website and on packs, and nods to science stressing benefits such as neutralizing free radicals, support for the immune system or weight loss assistance.
“In making these statements, Tetley utilizes improper antioxidant, nutrient content and health claims that have been expressly condemned by the FDA in numerous enforcement actions and warning letters,” De Keczer’s complaint reads.
Claims such as ‘natural source of antioxidants’ were illegal under the Food Drug & Cosmetic Act as adopted in California law, De Keczer said, adding that the FDA wrote to Unilever in 2010 warning them that describing tea as a ‘natural source of antioxidants’ was against the law.
Tetley USA’s nutrient content claims were unlawful in regard to antioxidants since these failed to comply with RDIs (which do not exist) that would serve as a basis for such claims, the complaint adds.
For instance, an ‘excellent source’ claim required a nutrient to be represent at least 20% of the daily value for that nutrient, while ‘contains’ and ‘provides’ required 10%, De Keczer says.
‘Ambiguity and confusion’ in complaint
But dismissing the 2012 complaint on August 16, US district judge Edward Davila said it did not give a clear, unambiguous account of allegedly fraudulent, deceptive, misrepresentative or other allegedly unlawful statements.
Addressing claims relating to Tetley’s alleged fraudulent conduct, deception or misrepresentation, the court said De Keczer’s complaint created “ambiguity and confusion’ in terms of identifying the supposedly ‘Misbranded Food Products’ (see above) that De Keczer bought.
“The amended compliant fails to unambiguously specify the particular products that have violated particular labelling requirements,” Davila writes, with the court and Tetley left to draw their own inferences about products at issue and alleged mislabelling.
“The Court finds that the amended complaint does not provide a clear and unambiguous account of the allegedly fraudulent, deceptive, misrepresentative, or otherwise unlawful statements,” Davis adds.
Moreover, Davila said that statements on food or beverage labels – like the Tetley ones at issue – did not constitute express warranties against a ‘product defect’ under the Song-Beverly Consumer Warranty Act or Magnuson-Moss Warranty Act, De Keczer’s eighth and ninth causes of action.