Class Action Says Addition of Antioxidants, Probiotics to Flying Embers Hard Seltzer, Kombucha Is Misleading

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A proposed class action argues that it is misleading for Fermented Sciences to fortify its Flying Embers-brand hard seltzer and hard kombucha with antioxidants, probiotics and adaptogens given USDA dietary guidelines encourage the consumption of vitamins and nutrients through healthful sources.

The 22-page lawsuit claims Fermented Sciences’ labeling of its hard seltzer and hard kombucha beverages not only misleads consumers into thinking the products are a healthful source of nutrients and dietary ingredients, but also that the addition of antioxidants, probiotics and adaptogens outweigh the effects associated with alcohol consumption. Moreover, the suit says the fortification of carbonated beverages is prohibited because these drinks are typically high in sugar and/or empty calories, not nutrient dense and not intended to be a significant part of a balanced diet.

“An average consumer does not have the specialized knowledge necessary to ascertain that the deleterious effects of alcohol overtime [sic] will not be overcome by the addition of vitamin C and probiotics,” the complaint charges. “Reasonable consumers must and do rely on a company to honestly identify and describe the components, attributes, and features of a product, relative to itself and other comparable products or alternatives.” 

The lawsuit frames the defendant’s hard seltzer and hard kombucha drinks within an overcrowded industry increasingly rife with alcoholic beverages that are effectively touted as “better for you” in order to stand out from competitors. The case stresses that the marketing of hard seltzers and hard kombuchas “reflect the arc of regular beverages” in that companies have begun to not only remove perceived negative ingredients such as sugars and artificial colors, but have also added some “positive components” such as vitamins, probiotics and botanical adaptogens. 

The filing stresses, however, that the consumption of alcohol in general runs contrary to the USDA’s 2020-2025 Dietary Guidelines for Americans. Per the suit, the guidelines advise that daily alcohol intake by adults should be limited so as to not exceed daily caloric limits while stressing that “drinking less is better for health than drinking more.”

Overall, the USDA’s dietary guidelines encourage consumers to select healthful sources of nutrients as part of a well-rounded diet rather than meeting vitamin intake guidelines through the consumption of otherwise nutritionally harmful foods and beverages, the lawsuit relays. The suit contends that the fortification of Flying Embers hard seltzer and hard kombucha does not jibe with federal requirements regarding the addition of nutrients and components to foods. 

“In a 2015 Q&A Guidance Document relating to the Fortification Policy, the FDA stated they did not consider ‘it appropriate to add vitamins and minerals to alcoholic beverages,’” the complaint states, adding that other groups have argued that the use of claims such as “made with antioxidant vitamin C” in marketing alcohol misleadingly conveys healthfulness. 

Further, the filing says alcohol consumption interferes with the body’s absorption of nutrients and can generally reduce the levels of antioxidants, such as vitamin C, found in the body. The defendant’s marketing and label emphasis on the inclusion of antioxidant vitamin C in the beverages obscures the fact that alcohol provides empty calories, the suit additionally claims. 

According to the case, the value of the Flying Embers products was materially less than their value as represented by Fermented Sciences, and consumers would not have bought the hard seltzer or hard kombucha, or would have paid less, had they “known the truth.” 

The lawsuit looks to represent consumers in Illinois, North Dakota, Kansas, West Virginia, Wyoming and Delaware who bought the Flying Embers products within the applicable statute of limitations period. 

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