In a complaint filed last month in Illinois, plaintiff Andrew Block cites tests conducted by Consumer Labs and his own counsel (details of which are not given in the lawsuit), which he claims indicate Lifeway’s plain kefir contained almost 4% lactose, which is just below the 4-5% percentage of lactose contained in regular milk.
Block – who is represented by Chicago law firm Kozonis Law, added: “Defendant’s labels and advertisements for Plain Kefir… are false, deceptive and misleading, and violate almost every state warranty, consumer protection, and product labeling law in the United States.
“Through a fraudulent, unlawful, deceptive and unfair course of conduct, Defendant advertised, marketed, sold, and/or distributed Plain Kefir with the false representation that Plain Kefir is '99% lactose-free.' In reality, according to independent lab tests, Plain Kefir contains about as much lactose as that commonly found in 2% milk sold in the dairy aisle of grocery stores.”
Lifeway: ‘Independent, third-party lab testing shows our kefir is 99% lactose free’
A Lifeway Foods spokesperson, however, told FoodNavigator-USA that it had 100% confidence in its products and claims and intended to fight back: “We have confirmed through independent, third-party lab testing that our kefir is 99% lactose free.”
The spokesperson added: “While it is Lifeway’s policy not to comment on pending litigation, the company will vigorously defend against this lawsuit.”
According to Lifeway, which makes the same ‘99% lactose free’ claims about all of its products, the cultures its uses break down the lactose in milk over the lengthy 14-18 hour fermentation process, ensuring that its kefir is “99% lactose-free when you drink it." It adds: "While trace amounts of lactose may remain in the kefir, it is tolerated by most people who are lactose-intolerant.”
When the kefir cultures are introduced to the milk, they split the lactose into the simple sugars galactose and glucose such that the enzyme lactase - which lactose intolerant people lack – is not needed to break down the lactose.
Attorney: If Lifeway has tests for lactose that substantiate its claims, it should be able to prevail
So what do attorneys make of the case, which on the face of it appears much more clear cut than many false advertising cases, which often focus around nebulous words such as ‘natural’?
Perkins Coie partner David Biderman (who is not involved in the case in question), told FoodNavigator-USA that provided it has solid data, Lifeway has a good chance of prevailing: "If Lifeway has tests for lactose that substantiate its claims, it should be able to prevail unless the plaintiff has very strong test results contradicting that claim.
"In particular, if the Lifeway tests were conducted pursuant to reference testing methods cited in the FDA regulations, these tests should be given great deference by the court. California courts have scrutinized the validity of plaintiffs challenging label substantiation and will dismiss cases where the plaintiffs’ claims of lack of substantiation are not supported by valid scientific evidence."