Costco sells Kirkland brand sparkling water that is black raspberry flavored.  On the center of the label, the product is described as "Sparkling Black Raspberry Flavor."  And, at the bottom, under the statement that the product has "Zero Calories," the product is described as "Carbonated Flavored Water."  What is the label communicating about the amount of raspberry that is actually included in the drink?  That was the issue in a recent lawsuit brought in federal court in Illinois.

A consumer sued Costco, alleging that the labelling on the Kirkland "Sparkling Black Raspberry Flavor" water misleads consumers about the amount of raspberry contained in the drink and that the drink's primary flavor is derived from raspberries.  The consumer argued that the use of the term "Black Raspberry Flavor," along with the fact that there are two black raspberries pictured on the label and the fact that the water has a red hue, suggests that the product includes an appreciable amount of black raspberry ingredients, which the consumer alleged was not the case. 

Under Illinois law, a practice is deceptive when "it creates a likelihood of deception or has the capacity to deceive" from the perspective of the reasonable consumer.  The court said that the most important consideration when engaging in this analysis is "how real consumers understand and react to the advertising."  The court explained, "many reasonable consumers do not instinctively parse every front label or read every back label before placing groceries in their carts."  

On a motion to dismiss, Costco argued that no reasonable consumer would interpret the product's labeling to make any specific ingredient claim and that any interpretation that the drink contains a specific amount of black raspberry fruit is unreasonable.  Costo further argued that the references to "black raspberry flavor" and "carbonated flavored water" makes it clear that it's only making a flavor claim, not an ingredient claim.  

The court agreed with Costco and dismissed the claim, holding that the consumer's interpretation of the label was "fanciful and unreasonable."  The court explained, "The label makes no claim that the product is flavored with black raspberries, let alone only black raspberries."  The court also agreed with Costco's argument that the references to "flavor" further supported the conclusion that Costco is only making a flavor claim, not an ingredient claim.  

Akers v. Costco, 2022 WL 4585417 (S.D. Ill. 2022).