Coca-Cola Fails to Dodge False Advertising Class Action

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A federal judge dismissed some false advertising claims against Coca-Cola but will allow other claims in a class action lawsuit to go forward.

U.S. District Judge Jeffrey S. White granted summary judgment in Coca-Cola’s favor on only a few of the plaintiffs’ claims, based on evidence revealed in discovery and testimony provided in depositions.

Coca-Cola won on claims that arose out of the “original formula” language that appears on Coca-Cola product labels, since plaintiffs testified that they had either not seen that language or that it was not significant in their choice to buy Coca-Cola.

Judge White refused to rule against a claim by plaintiff George Engurasoff over the language “no artificial flavors. no preservatives added. since 1886.” that appears on the labeling for Coca-Cola products. Engurasoff argues that the language is an affirmative misrepresentation, since the product contains phosphoric acid and uses it as both an artificial flavoring and chemical preservative.

Based on testimony that Engurasoff gave in deposition, the judge found that he had presented enough evidence to establish a factual dispute as to whether he relied on that language in his decision to purchase Coca-Cola products.

However, the judge disallowed Engurasoff to proceed with any claim over the phrase “original formula.” Judge White said that in a previous ruling from August 2014, the court had dismissed claims premised on that statement. Therefore he would not allow Engurasoff to bring any such arguments again.

Judge White also refused to grant Coca-Cola summary judgment on a claim by plaintiff Joshua Ogden over Coca-Cola’s ingredients list. Despite the seemingly mixed content of Ogden’s testimony in deposition, the judge found Ogden’s testimony supported his claim that he would not have bought Coca-Cola had he known it contained phosphoric acid.

Regarding claims by plaintiff Paul Merritt, Judge White granted summary judgment in Coca-Cola’s favor only on Merritt’s claim over the “original formula” language. Merritt testified that he had never noticed that language until it was shown to him during the deposition.

Engurasoff and Ogden initiated their Coca-Cola class action lawsuit in 2013. They argued that the labeling on Coca-Cola products violates several consumer protection laws, such as the federal Food, Drug and Cosmetics Act and California’s Sherman Food Drug and Cosmetic Law.

In August 2014, Judge White allowed many of the plaintiffs’ claims to go forward over Coca-Cola’s argument that phosphoric acid is not actually an “artificial flavor.” However, the court dismissed some claims based on a breach of warranty theory and the original formula for Coca-Cola.

The plaintiffs’ lead counsel are John W. Barrett and Brian Herrington of Barrett Law Group PA; and Keith M. Fleischman, Joshua D. Glatter and Bradley F. Silverman of Fleischman Law Firm PLLC.

The Coca-Cola Deceptive Advertising Class Action Lawsuit is In Re: Coca-Cola Products Marketing and Sales Practices Litigation, Case No. 4:14-md-02555 in the U.S. District Court for the Northern District of California.

UPDATE: 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 2: On July 19, 2016, the judge denied a motion by Coca-Cola to put the class action lawsuit on hold.

UPDATE 3: On June 16, 2017, soda drinkers asked a federal judge to certify their proposed Class in a lawsuit alleging Coca-Cola orchestrated a misleading marketing campaign about the preservatives and artificial flavors in its products.

UPDATE 4: On Feb. 14, 2020, a California federal judge partially certified a class action lawsuit filed against The Coca-Cola Co. by consumers who say Coke’s “no artificial flavors” labels are misleading.