Coca-Cola Artificial Flavor Class Action Lawsuit Will Continue

A California federal judge is allowing a class action lawsuit against the Coca-Cola Company to continue, which alleges that the beverage company added preservatives and artificial ingredients to its Coke soft drink, while claiming that it didn’t. However, the judge also had some harsh words for the attorneys behind the lawsuit.

The Coca-Cola class action lawsuit was filed in August 2013 by plaintiffs George Engurasoff and Joshua Odgen alleging that Coca-Cola made false claims by saying that Coke does not contain added preservatives and artificial flavors because it includes, the plaintiffs allege, a “man-made artificial chemical” that is used both to add flavor and to work as a preservative in the beverage product.

Coca-Cola lists phosphoric acid in its list of ingredients and the plaintiffs say that it is an artificial flavor because it is not from something found in nature.

In the same vein, the plaintiffs say that if it also helps to prevent “the growth of micro-organisms” that it should also be referred to as a chemical preservative.

“Under the [federal] Food Drug & Cosmetic Act and [California’s] Sherman Law, defendants must disclose that a product ingredient is being [used] as an artificial flavoring and/or as a chemical preservative,” the plaintiffs claim in their class action lawsuit.

Coca-Cola argued that phosphoric acid is not listed by the Food and Drug Administration (FDA) as an artificial flavor, and that for an ingredient to be considered an artificial flavor it must embody a “characteristic flavor.”

However, Judge White said that the federal regulation also says that “these lists are not exhaustive.”

In addition, he said that the regulations are also “insufficient to insert a requirement that all artificial flavors, by definition, must impart a characteristic taste and/or aroma.”

For these reasons, Judge White said that the “plaintiffs allegations appear sufficient to show, at this procedural stage, that phosphoric acid was used to impart flavor.”

As for whether or not phosphoric acid is technically a chemical preservative, Judge White said that he’s not sure if Coca-Cola’s assertion that an ingredient can only be classified as a preservative if that’s the reason it was used is accurate, adding that “it would require a factual determination that is not appropriate at this procedural stage.”

Judge White did dismiss the breach of implied warranty claim as well as other charges that had to do with Coke’s original formula, but  plaintiffs were given permission to amend these charges.

However, U.S. District Judge Jeffrey White had some harsh words for the attorneys representing the plaintiffs in this Coca-Cola class action lawsuit.

White said that the plaintiffs “view this case, or the related cases, as an opportunity to settle a class action and obtain a large sum of attorneys’ fees.”

The California federal judge called some of the hours that the attorneys had spent on the case “unnecessary,” adding that the court had asked for supplemental briefings, but instead the attorneys filed a “15-page brief along with voluminous exhibits.”

“The Court will review any request for attorneys’ fees as part of a class action settlement with close scrutiny,” Judge White added.

There are five other class action lawsuits filed against Coca-Cola that make similar allegations, which may end up being consolidated into a multidistrict litigation (MDL) or mass tort. The deadline to file for an MDL is Sept. 26, which is also the same day that the court has scheduled a case management conference for this class action lawsuit.

The Coca-Cola Class Action Lawsuit is George Engurasoff and Joshua Ogden v. The Coca-Cola Company and Coca-Cola Refreshments USA, Inc., Case No. 13-cv-03990 in the U.S. District Court for the Northern District of California.

UPDATE: On May 19, 2016, a federal judge dismissed some false advertising claims against Coca-Cola but will allow other claims in a class action lawsuit to go forward.

UPDATE 2: On July 5, 2016, plaintiffs in a large-scale multidistrict litigation over Coca-Cola marketing practices are alleging that the beverage behemoth is resorting to stall tactics to delay an artificial ingredient lawsuit.

UPDATE 3: On July 19, 2016, the judge denied a motion by Coca-Cola to put the class action lawsuit on hold.