Defending Citric Acid Lawsuits: Fighting Back
A quick review of this series so far: a weak federal rule, a versatile ingredient, and plaintiff-friendly state statutes. These factors create a perfect storm that tilts all the early leverage to the plaintiffs’ bar. The number of units sold drives the decision to either fight or settle. When sales volume justifies the spend, a manufacturer can claw back bargaining power by pushing back aggressively. Angles of attack include leveraging formulation records, pH/TA targets, sensory data, and qualified experts; filing targeted motions that narrow claims and class theories; and creating evidence that demonstrates citric acid’s functional role — such as an acidulant or processing aid — rather than a characterizing flavor. That is how to shift leverage and protect the brand.
Defending Citric Acid Lawsuits: Angles of Attack
There are plenty of ways to attack a civil complaint of this type. Here are just a couple of topics to develop during motions and depositions that can put the plaintiff’s firm on its back foot:
- The source or origin of citric acid matters. FDA acknowledges that citric acid can be naturally occurring. The USDA treats citric acid made by microbial fermentation as non-synthetic in the context of organic agriculture. If a complaint alleges the citric acid is “artificial,” it must plead facts about the citric acid that differentiate it from its natural varieties.
- Function matters under 21 C.F.R. § 101.22. The rule turns on whether the ingredient’s “function” is to impart flavor. If citric acid is present as an acidulant or processing aid, the core of the “artificially flavored” claim falls apart — the function is technical, not flavor. This is developed with expert testimony. Plaintiffs must allege product-specific facts about function in the original complaint; it is not sufficient to merely call attention to the presence of citric acid as an ingredient.
The Limiting Factor is Resources
This is not an exhaustive catalog of defenses; it is enough to show that viable, product-specific arguments exist. When defending citric acid lawsuits, the practical constraint is economics. Depositions, motion practice, and expert testimony are expensive. Litigation resources should be deployed only when they move the needle for the manufacturer. When unit volumes are substantial, investing in these defenses can shift leverage and create the space to find a more acceptable solution.
What “expensive” actually means
To be concrete about the spend: a serious, aggressive defense in a characterizing-flavor matter — targeted motion practice, fact and expert depositions, a qualified food-science or sensory expert, and class-certification briefing — commonly runs $150,000 to $500,000+ through trial readiness, depending on venue and the complexity of the formulation record. That is precisely why this path is reserved for products with substantial unit volumes, where the exposure justifies the investment and the leverage gained can be converted into a far better settlement.
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Jason Foscolo
Founder of The Food Law Firm — fractional general counsel for food & beverage businesses nationwide.