Costco class action over sparkling water flavoring dismissed

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Update:

• A federal judge tossed a class action lawsuit accusing Costco of labeling its black raspberry sparkling water product in a way that misled consumers about how it was flavored. 
• The judge determined that the complaint failed to adequately plead that Costco had committed fraud and called the plaintiff’s interpretation of the product’s labeling “fanciful and unreasonable.” 
• The consumer behind the class action lawsuit argued unsuccessfully that Costco used malic acid to mimic the flavor of black raspberries, despite including several statements and images that would imply the product was flavored with black raspberries.
• Costco argued that its inclusion of malic acid as an ingredient in the beverage was not for flavoring but rather for pH control. 

Costco Sparkling Water Class Action Lawsuit Overview: 

• Who: Timothy Akers filed a class action lawsuit against Costco Wholesale Corporation. 
• Why: Plaintiff claims Costco misleads consumers about the ingredients in its Kirkland Signature Black Raspberry Flavored Sparkling Carbonated Water.
• Where: The class action lawsuit is pending in Illinois federal court. 

(Sept. 08, 2021)

Costco’s Kirkland Signature Black Raspberry Flavored Sparkling Carbonated Water fails to disclose that it is partially artificially flavored, a new class action lawsuit alleges. 

Plaintiff Timothy Akers claims Costco misleads consumers about the sparkling water’s ingredients by displaying pictures of black raspberries on the products labeling and using synthetic food coloring to give the beverage a reddish color. 

Akers wants to represent an Illinois Class of consumers who bought the beverage as well as a multi-state Class of consumers from Arkansas and Iowa. 

Artificial Ingredients in Costco Sparkling Water

Plaintiff claims the black-raspberry flavored Costco sparkling water contains DL-malic acid, which does not occur naturally, unlike L-malic acid, which occurs naturally in certain fruits. 

Costco is misleading consumers into believing it only has natural flavors by not including on its label that it has artificial flavoring, the class action lawsuit alleges. 

Akers further alleges Costco could have used L-malic acid — in order to keep it from containing any artificial flavors — but instead chose to use DL-malic acid because it was either “cheaper” or “more accurately resembled” natural blackberry flavor. 

The label on the Costco sparkling water also misleads consumers about the amount of natural blackberry ingredients it has, says Akers, who claims the drink contains flavor compounds from other, less expensive fruits as well. 

“These compounds are cheaper than using only black raspberries, and more concentrated, so less black raspberry needs to be used,” states the class action lawsuit. 

The value of the product is, thus, represented as higher than what it actually is, causing consumers to unknowingly spend more than they otherwise would, according to the Costco sparkling water class action lawsuit.

Akers accuses Costco of negligent misrepresentation, fraud, and unjust enrichment, as well as violating the Implied Warranty of Merchantability and Magnuson Moss Warranty Act. 

Plaintiff is demanding a jury trial and requesting injunctive relief along with monetary, statutory, and/or punitive damages for themselves and all Class Members.

A similar class action lawsuit filed last month against BlueTriton Brands alleged the company sold lemon-flavored San Pellegrino in yellow-tinted bottles that misled consumers about its lemon content.

Were you under the assumption Kirkland Signature Black Raspberry Flavored Sparkling Carbonated Water contained only natural flavors? Let us know in the comments! 

The plaintiff is represented by Spencer Sheehan of Sheehan & Associates, P.C. 

The Costco Water Class Action Lawsuit is Akers v. Costco Wholesale Corporation, Case No. 3:21-cv-01098, in the U.S. District Court for the Southern District of Illinois.

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