Consumers seek lawsuits on Hard Seltzers & Kombucha on Health Claims

October 26, 2021 – San Diego, CA.  The carbonated alcohol beverage market is changing fast in America, where for the last 20 years or so craft beer has been king.  

But tastes change and now competition from other beverages is taking over in the form of kombucha and hard seltzer. But as consumers are starting to learn, some of these drinks may not be as healthy as the company’s marketing makes them out to be.

Kombucha is basically a tea brewed with water, sometimes fruit or extracts and something called SCOBY, which is a culture of yeast and bacteria (acetobacter bacteria, lactobacillus). The ABV for these drinks can vary from a slight amount alcohol at 1.5% to as much at 7-8% ABV.

Hard seltzers are basically water, fruit juices or extracts and sugar fermented to create alcohol then carbonated. Many of these fall in the 5% to 7% alcohol by volume (ABV).

Are these drinks as healthy as some of the marketing tends to suggest? That’s what one of the current lawsuit attests. 

Fermented Sciences Incorporated is the owner of brand Flying Embers, based in Ojai, California and produces both kombuchas and hard seltzers.  They have recently come under fire (pun intended) from an Illinois woman, Katie Kuciver, who is a hard seltzer drinker.  

She filed a class action lawsuit on October 24 in her local federal court alleging violations of state consumer laws. She states that she was misled by Flying Embers marketing claims of containing vitamin C, containing live probiotics, and the use of added real botanicals.  

She feels it tricks her and other consumers that believe the products are a “healthful source of nutrients and dietary ingredients,” and that outshines that fact that these drinks do in fact contain significant levels of alcohol.      

She claims to like eating a health diet and enjoys fruits and vegetables and acknowledges that consuming alcoholic beverages isn’t ideal, however she feels because of the marketing statements of containing probiotics, antioxidants and adaptogens “alleviated any guilt she has from consuming the products.” 

She further states she felt, because of these positive marketing health claims, outweighed the negative effects of the alcohol, “because that is what the representations said and implied.” 

The lawsuit also states:

“An average consumer does not have the specialized knowledge necessary to ascertain that the deleterious effects of alcohol overtime will not be overcome by the addition of vitamin C and probiotics.” 

A press release from the company on January 28, 2020 contains these statements, touting health claims as follows:

“This makes Flying Embers the ideal hard kombucha to take on-the-go for outdoor activities such as hikes, camping, and beach days. This is for consumers that want a live, unpasteurized kombucha,” says Fermented Sciences’ Founder and CEO Bill Moses.

In addition to being the world’s first unpasteurized shelf stable hard kombucha with live probiotics, Flying Embers is the only hard kombucha brand that meets the World Health Organization (WHO) standard of integrating live probiotics that provide verified health benefits.

“We are committed to delivering a shelf stable, delicious alcoholic beverage with true probiotic benefits,” says Moses. “Ten years of rigorous research and development with our partners at zümXR® has enabled us to earn the trust of our loyal consumers and stand by our brand’s better-for-you promise.”

The last part of that statement (in bold) may very well play out in the plaintiffs favor in court.

This lawsuit is suing under Illinois consumer and business laws, as well as consumer fraud acts, for breach of warranty, negligent misrepresentation and fraud.

Flying Embers Hard Seltzer Class Action Lawsuit is Kuciver et al., v. Fermented Sciences, Inc., Case No. 1:21-cv-05668, in the U.S. District Court Northern District of Illinois.

Not the only bubbly beverage consumer lawsuit.

Last August, the Boston Beer Company was served a lawsuit over its line of hard seltzers brand Truly. This lawsuit alleges that its labels illustrate real fruit flavors are used in its drinks, when in fact they do not.

The basis of this lawsuit is of misleading pictures on its labels, in particular the Truly Black Cherry Hard Seltzer flavor that features pictures of black cherries. Consumers believed that Truly Black Cherry Hard Seltzer did contain some fruit.

Tatiana Galvez and James Kelly are the lead plaintiffs and claim Boston Beer Company is in violation of both  California’s Consumers Legal Remedies Act, and California’s Business and Professions Code§ 17200, California’s False Advertising Law .

How do feel about these misleading beverage health claims?

Sources:

https://www.brewbound.com/news/fermented-sciences-inc-announces-shelf-stable-probiotic-technology/

https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/cfrsearch.cfm?fr=101.22