I have previously written about consumer lawsuits and the danger they pose to corporate reputations if not properly handled, both in the court of law and the court of public opinion. Particularly nettlesome are the consumer class actions that allege a food product is mislabeled or deceptively advertised. These lawsuits are a dagger aimed at the heart of the brand. Many of these lawsuits originate in California, which may have one of the strongest consumer protection statutes in the California False Advertising Law.
The latest such lawsuit to come out of the Golden State is a class action alleging that Tropicana’s pasteurized “not-from-concentrate” (NFC) orange juice, which Tropicana advertises as “100% pure and natural,” is neither “pure” nor “natural.” Instead, the complaint alleges that the orange juice “is a product that is scientifically engineered in laboratories, not nature.”
The basis for the claim of deceptive advertising derives from the way pasteurized NFC orange juice gets from the orange groves to your refrigerator. After picking, the oranges are sent to a processing facility, where they are squeezed. The resulting juice is then pasteurized and stored in tanks where it goes through a process known as “deaeration,” which removes oxygen from the juice so that it can be stored up to a year.
The difficulty for the juice companies is that pasteurizing, deaerating, and storing orange juice causes the juice to lose a degree of flavor and aroma. To compensate, “flavor packs” are added prior to packaging and shipping the juice.
The plaintiffs single out Tropicana, but other major orange juice companies, such as Minute Maid and Florida’s Natural, also use flavor packs. The plaintiffs allege that the addition of the flavor packs means that Tropicana is violating the False Advertising Law by advertising its NFC juice as “100% pure and natural:”
“[T]ropicana NFC juice undergoes extensive processing which includes the addition of aromas and flavors … . This extensive processing changes the essential nature of the NFC juice … . It is not natural orange juice. It is instead a product that is scientifically engineered in laboratories, not nature, which explains its shelf-life of more than two months.”
So what is a flavor pack? Although the plaintiffs claim that “[f]lavor packs are unnatural and are products of science,” the citrus industry asserts that flavor packs are created by recapturing the volatile organic compounds released from the orange juice during pasteurization and adding them to orange byproducts such as pulp and peel. Further, the industry adds that the Food and Drug Administration does not require that flavor packs be included in the labeling of pasteurized juice because flavor packs are made from oranges.
Although I have questions about the merits of the lawsuit, my purpose here is not to delve deeply into that subject. Instead, my purpose is to examine Tropicana’s public response. I believe that lawsuits directed at the nature and quality of food products need a forceful public response to minimize potential damage to the brand. When questioned about the lawsuit, Tropicana issued the following bland written statement:
“Our juice is safe, nutritious and Tropicana remains committed to offering great-tasting 100 percent orange juice with no added sugars or preservatives. We take the faith that consumers place in our products seriously and are committed to full compliance with labeling laws and regulations.”
Tropicana is owned by PepsiCo. Its statement is similar to the one issued by Taco Bell, which used to be owned by PepsiCo, when a California class action lawsuit accused it of not having beef in its tacos:
“Taco Bell prides itself on serving high quality Mexican inspired food with great value. We’re happy that the millions of customers we serve every week agree. We deny our advertising is misleading in any way and we intend to vigorously defend the suit.”
I noted at the time that Taco Bell’s statement was problematic, because while it was “vigorously defend[ing] the suit,” its customers were likely asking “What’s in the tacos?” As I wrote about in “Where’s The Beef,” eventually Taco Bell aggressively responded to the lawsuit in the media, and when the plaintiffs tried to quietly drop the case, Taco Bell resisted and in doing so, generated more favorable publicity.
As far as I can tell, the Tropicana lawsuit has not garnered the same degree of media attention as the Taco Bell lawsuit did when it was filed, so perhaps a more aggressive public response by Tropicana is not warranted. But it is early, and there are many decision points in a lawsuit that may bring more attention to these allegations. If that happens, Tropicana should look to the public response strategy employed by its cousin, Taco Bell.