Whole Foods, Millennium Sued Over Kombucha Drinks

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By Julie A. Steinberg

Nov. 18 — Whole Foods and Millennium Products Inc. were hit with a proposed national class action alleging Millennium's Kombucha tea drinks, which undergo secondary fermentation in the bottle, can leak or explode when opened because of carbon dioxide buildup.

Additionally, because of the fermentation, the beverages may contain more than 0.5 percent alcohol, the legally allowed limit for a non-alcoholic beverage, California resident Nina Pedro and Washington state resident Rosaline Lewis allege. However, they aren't properly labeled, according to the Nov. 17 complaint.

Kombucha is generally an effervescent fermented drink of sweetened black tea that's manufactured and sold by the defendants as a functional food with several unsubstantiated health benefits, the plaintiffs allege in their complaint in the U.S. District Court for the Northern District of California.

Whole Foods hasn't been served or seen the lawsuit, and can't comment on it, a company spokesman told Bloomberg BNA in a Nov. 18 e-mail.

Attempts to reach Millennium for comment weren't successful Nov. 18.

Secondary Fermentation Problems

The defendants' kombucha is made by adding a starter sample of kombucha culture (a symbiotic colony of bacteria and yeast) from an existing culture to sugar and black or green tea, and allowing the mixture to ferment, the complaint says.

The fermentation continues after the product is bottled. The secondary fermentation in the bottles can't be safely controlled, the complaint alleges.

This causes explosions once the carbon dioxide levels in a bottle exceed the pressure tolerances of the bottle or cap.

Kombucha can also leak from the cap, causing product spoilage, plaintiffs say.

Alternatively, some bottles have caps that are on so tight the bottle can't be safely opened.

Pedro alleges that “on multiple occasions” a kombucha bottle broke its seal and leaked, causing damage to her purses and handbags, as well as their contents.

Defendants are well aware of the spoilage and leaking problems, from long-standing consumer complaints, widespread problems with leakage during product storage and numerous consumer postings to defendants' websites, blogs and social media, the complaint says.

The complaint is replete with examples of postings from consumers, including one who said the drink “shot across the kitchen hitting the far wall” when it was opened, and another who couldn't get a bottle open, even with a wrench.

Alcohol

The kombucha label says the product is perishable, but that doesn't let consumers know the drink may contain alcohol, the complaint says. It doesn't indicate that the beverage will ferment and produce alcohol above legal limits if not refrigerated at all times, nor does it indicate that kombucha is stored, shipped and packaged in a way that “often leads to substantial amounts of alcohol being present, not just traces,” the complaint says. The label says, “This product contains a trace amount of alcohol.”

The plaintiffs seek to represent all U.S. consumers who bought the defendants' kombucha products within the last two years. They allege the defendants breached the California Consumer Warranty Act and also seek damages under California's Unfair Competition Law.

Lewis, who alleges she became sick after drinking a bottle of kombucha, seeks to represent consumers who may have allergic reactions to alcohol or other reasons to avoid it.

She seeks injunctive relief in the form of revised labeling or pasteurization techniques to keep consumers from being inadvertently subject to alcohol consumption. Lewis raises a claim under the California Consumer Legal Remedies Act.

Clayeo C. Arnold, Professional Law Corp.; and Morgan & Morgan Complex Litigation Group represent the plaintiffs.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com