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Thank you to Sean Swidler, founder of Chicago-based Swidler Law Group, for providing his perspective on the class action lawsuit against Poppi.
From humble beginnings selling apple cider vinegar soda at local farmers’ markets, Poppi’s sales are estimated to have topped $100 million as of July 2024.
Poppi has marketed its product as a “prebiotic soda” made “For a Healthy Gut” and under the slogan “Be Gut Happy. Be Gut Healthy.
The allegations in the California class action lawsuit Kristin Cobbs v. VNGR Beverage, LLC d/b/a Poppi filed in May 2024 highlight the need for food and beverage manufacturers to understand the science behind the ingredients they use and the health-related marketing statements they would like to make to boost sales. If proven true, the statements below from the complaint in the Poppi lawsuit best underscore the issue:
'Poppi soda only contains two grams of prebiotic fiber, an amount too low to cause meaningful gut health benefits for the consumer from just one can.… Consumers would need to drink more than four Poppi sodas in a day to realize any potential health benefits from its prebiotic fiber and …the Products are predominantly composed of 'cane sugar,’ meaning that a consumer who does drink enough Poppi sodas to realize any prebiotic benefits would also need to consume harmful levels of cane sugar, which has actually been shown to actually harm gut health.'
According to the plaintiffs, comparing Poppi's gut health marketing claims against the product's alleged shortcomings renders these claims false and misleading to consumers. This lawsuit raises a crucial issue for food and beverage brands—how can entrepreneurs market their unique value propositions in compliance with the U.S. Food and Drug Administration?
How does the FDA regulate dietary supplements and dietary substances as food ingredients?
The short answer is not with a high degree of involvement unless and until there is a known problem.
Under the Dietary Supplement and Health and Education Act (DSHEA) amendments to the Federal Food, Drug, and Cosmetic Act (FD&C Act), the FDA does not have the authority to approve dietary supplements before they are marketed. With limited exceptions, manufacturers do not have to provide the FDA with evidence to substantiate safety before or after they market products. Because no federal law requires testing for safety and effectiveness, the amount of scientific evidence available for supplement ingredients varies widely.
Likewise, the FDA does not approve claims for dietary supplements or other labeling before use. Federal law only requires product labeling to be truthful and not misleading, with the FDA stepping in to remove non-compliant or harmful products from the market.
While we have yet to determine the scientific evidence Poppi will present in its defense, absent FDA involvement, it will be up to the expert witnesses to explain the science of prebiotics and gut health to the jury hearing the case.
Poppi has provided a few insights into their legal strategy.
How has Poppi’s responded and the alleged scientific shortcomings?
Poppi’s 'gut health' marketing statements arise from using agave inulin, a natural soluble fiber, as a prebiotic ingredient. Each can of Poppi includes two grams of agave inulin.
Plaintiff’s complaint cites numerous studies and articles attacking every aspect of Poppi’s claims, ranging from the amount of prebiotic required to have an effect on the human microbiome, the drawbacks of using a single prebiotic instead of a combination of foods and ingredients with prebiotic effects, and potential complications arising from the large quantities of cane sugar being consumed in the four cans of the Poppi beverage required to realize any possible health benefits from the agave inulin.
Based on the cited studies and articles, there is a mismatch between the scientific evidence and Poppi’s gut health marketing statements. Complicating things further is the FDA’s lack of early involvement in these types of issues. There is a lack of guidance from the FDA on what “gut-healthy” may even mean and a standard for assessing and achieving proper gut health.
Even if Poppi prevails, the need to be mindful of the correlation between scientific evidence and health-related marketing statements cannot be overlooked.
The immediate effect of this lawsuit being initiated is a spotlight drawn on the amount of cane sugar in Poppi’s products and the brand modifying much of its online marketing to remove the gut health marketing statements.
What can other food and beverage brands learn from the lawsuit?
The allegations also highlight the need for all food and beverage brands to carefully craft health-related marketing statements to consider all health-related aspects of a particular product.
While a specific ingredient or ingredients may have health benefits, it cannot be viewed in a vacuum.
Suppose the overall effect of the product on consumer health is perceived as negative or questionable. In that case, a health-related marketing statement should be narrowly tailored and even include some disclaimer language or be avoided altogether.
Sean Swidler has been practicing law for 25 years and founded Chicago-based Swidler Law Group in 2019 to provide intellectual property, corporate and commercial, and FDA and USDA regulatory counseling to the food and beverage, cosmetics, nutritional supplements, pharmaceutical, and medical device industries. He counsels large companies with global reach and portfolios, mid-size companies whose growth rides on protecting their innovations, and early-stage entities launching businesses from new ideas.
Disclaimer: The information provided in this article does not constitute legal advice. All content and opinions in this article are for general informational purposes only.
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