Tropicana Deception Suit Will Stay on the Shelves
By ROSE BOUBOUSHIAN
(CN) – Tropicana must face claims that it misrepresents its processed, colored and flavored orange juice as “never from concentrate,” a federal judge ruled.
Tropicana’s website claims that “Tropicana Pure Premium is 100 percent pure and natural juice, with 16 fresh-picked oranges squeezed into every 59-ounce container. No water, sugar, or preservatives are ever added and it is never from concentrate, so you can get only the freshest, most delicious straight-from-the-orange taste.”
The consolidated federal action in New Jersey alleges that Tropicana Products, a PepsiCo subsidiary, is lying about its “not-from-concentrate” (NFC) orange juice.
Seven consumers say the juice is actually pasteurized, deaerated, stripped of flavor and aroma, and stored for a year or longer before it is made available to the public.
Tropicana allegedly mixes many types of orange cultivars from Florida and Brazil to get the juice. Then it adds chemically engineered “flavor packs” to mimic the flavor and color of natural juice, and cover up quality, varietal, seasonal and geographic differences in the fruit it used, according to the complaint. These flavor packs are allegedly include oils from the peels of oranges grown in Mexico, Brazil and other foreign countries.
The consumers also took issue with the iconic Tropicana image of an orange pierced by a straw, as well as marketing phrases such as “Grove to Glass” and that containers have “absolutely no space” for anything but 16 fresh-squeezed oranges. Such claims led plaintiffs like Aleksander Simic to buy Tropicana’s juice instead of the less costly Minute Maid Recon, according to the complaint.
U.S. District Judge Dennis Cavanaugh concluded Wednesday that the plaintiffs have satisfied the pleading standard of Federal Rule of Civil Procedure 9(b).
The unpublished ruling also preserves claims for breach of warranty and unjust enrichment.
“Plaintiffs allege, and for the purposes of the instant motion the court must accept as true, that Tropicana launched a marketing campaign in which it misrepresented its juice as ‘100% pure and natural orange juice,’ when it was the product of extensive processing, coloring, and flavoring,” Cavanaugh wrote. “Further, plaintiffs allege that ‘Tropicana unscrupulously capitalizes on consumers’ heightened demand for natural products by deceptively marketing its NFC juice.’ Accordingly, plaintiffs’ unjust enrichment claim may proceed and the motion to dismiss Count II of the [consolidated amended complaint] CAC is denied.”
Though the plaintiffs showed that they suffered an ascertainable loss under New York and New Jersey consumer protection laws, the judge dismissed the claims for punitive damages, Wisconsin false advertising of “merchandise,” and violation of “various” state consumer-protection laws.
“That Tropicana has labeled its juice ‘pasteurized’ does not inherently ‘provide a shield for liability for the deception’ that its product has no added flavoring or is 100 percent pure and natural orange juice,” Cavanaugh wrote. “Similarly, this court agrees that there is no supporting evidence for the proposition that consumers of Tropicana’s NFC juice, including plaintiffs, understood the intricacies relating to the shelf life and processing of the orange juice so as to destroy a reasonable expectation of the product’s freshness. As this court touched on during oral arguments, allowing this matter to progress to the discovery phase will provide the court with a more detailed answer to the question of whether the named plaintiffs believed they were getting fresh, as opposed to pasteurized, orange juice.”