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Dec. 4, 2020

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2 Towns sued over alleged use of artificial flavors in its hard ciders

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ALBANY, Ore. — A lawsuit against Corvallis-based 2 Towns Ciderhouse alleges that many of the company’s alcoholic drinks contain artificial flavoring, despite packaging that says otherwise.

The flavor in question comes from malic acid, which exists naturally in fruits like apples. According to court documents, 2 Towns is accused of adding a “likely cheaper” synthetic form, known as DL-malic acid, to its drinks. DL-malic acid is a man-made food additive, commonly used for pH balancing.

On March 12, Arizona resident Richard Winters filed a $5 million class action complaint in U.S. District Court in California against the nationwide hard cider distributor, accusing 2 Towns of violating multiple California false advertising laws. In a private June mediation with California Judge Andrew Guilford, the two sides reached a preliminary settlement agreement.

The agreement must still be solidified by way of a fairness hearing in federal court.

Another plaintiff, Illinois resident Jack Gruber, was added to the lawsuit in July with the implication that 2 Towns had also violated an Illinois consumer fraud law.

Examples of 2 Towns packaging referenced in court documents had statements printed on them that “nothing artificial” was used to make the beverages — specifically no concentrates, refined sugars, essences, artificial flavors, velcorin or sorbate.

The lawsuit alleges that, since the addition of DL-malic acid is not indicated on 2 Towns packaging, it would take consumers “an advanced understanding of organic chemistry” to be aware that some of the flavor is synthetic and that the company “did not believe its customers were well educated enough to know the difference.”

In court documents, plaintiffs’ attorney Todd Friedman wrote that his law office enlisted the help of an Illinois lab that tested various 2 Towns drinks, including drinks purchased by the two men. Friedman said the lab determined the products had “artificial malic acid” in them.

Lee Larsen, 2 Towns co-founder and CEO, said in an email to the Gazette-Times that he was unable to discuss details of the lawsuit aside from what was available online. Larsen and Friedman did not immediately respond to additional phone calls for comment.

Although it is unclear at this time what prompted Winters and Gruber to check for artificial flavoring in 2 Towns products specifically, court documents say the plaintiffs “learned that the common additive malic acid was often artificial” some time after purchasing the company’s drinks.

If the preliminary agreement is finalized, 2 Towns would set up a $985,000 settlement fund to pay compensation claims from customers, send out advertisements about the lawsuit and help defray the plaintiffs’ litigation costs.

U.S. customers who purchased the following products between March 12, 2016, and Oct. 11, 2020, may file claims: six-packs of the flavors Brightcider, Ginja Ninja, Made Marion, Outcider, Pacific Pineapple, Cherried Away, Cot in the Act, Sun’s Out Saison, Rhubarbarian or Prickly Pearadise, as well as 500-milliliter bottles of those same flavors, in addition to bottles of Serious Scrump, Imperial Hop & Stalk, Bad Apple, Nice & Naughty or Pearadise.

Settlement money would not be available to current or former 2 Towns employees, affiliated entities, company agents or legal representatives.

Claims, which must be submitted by Jan. 9, would be paid out in proportion to what each customer purchased. Objections to the fairness of the settlement can be submitted by March 26.

If finalized, the agreement also stipulates that 2 Towns must replace the alleged use of DL-malic acid in its products with the naturally occurring L-malic acid. The company would also cease publishing the “nothing artificial” statement on new packaging, its website and advertisements.

2 Towns defended its innocence in the preliminary agreement, but said the decision to settle was made “in order to avoid further expense, inconvenience, and the distraction of litigation, and to be free of further participation in, and any further controversy with respect to (the lawsuit).”

A final approval hearing will be held on May 10 at 2 p.m. before U.S. District Court Judge Cynthia Bashant in San Diego. Those who file objections before the deadline may also ask to speak during the hearing.

For more information on the case, visit cidersettlement.com.

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