Dr. Pepper Wants Class Cert. Denied in Canada Dry Ginger Ale Lawsuit

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Dr. Pepper, maker of Canada Dry ginger ale, asked a federal judge to deny Class certification to consumers who claim that Canada Dry is falsely advertised as being “Made With Real Ginger.”

On Wednesday, U.S. Magistrate Judge Nathanael M. Cousins heard arguments that the plaintiffs failed to establish that all of the members of their proposed Class would agree on what the advertising statement “Made from Real Ginger” should mean.

Additionally, Dr. Pepper made bids to strike the consumers’ expert testimony as well as declarations made by two of the consumers’ key witnesses.

According to Dr. Pepper, consumers could have a range of opinions on what “Made from Real Ginger” should mean in the context of a soda, and the consumers failed to unify opinions on this issue. Because class action lawsuits require a plaintiff to show that Class Members share a common perception, allegedly these plaintiffs failed to show a common injury done by Dr. Pepper’s statement.

An attorney representing Dr. Pepper claims that the lead plaintiffs Jackie Fitzhenry-Russell and Gegham Margaryan had disparate views on how ginger ale was made, which he says supports his argument that no common opinion has been established.

Judge Cousins echoed the company’s thoughts that the argument behind the consumers’ claims was nebulous, expressing his worry that the “theory of the case” had changed.

However, an attorney for the plaintiff argued otherwise, stating “although [Dr. Pepper has] vigorously argued that the theory of the case has changed, it has not changed. The theory of the case has always been the same: that this product is not ‘made from real ginger’ as reasonable consumers understand them.”

In the Dr. Pepper Canada Dry no real ginger class action lawsuit, the plaintiffs state that Canada Dry ginger ale does not get its flavor from ginger, and that independent testing of the beverage showed “no detectable amount of any ginger compounds.”

Allegedly, though Dr. Pepper’s testing of the product did show some ginger, the amount that their test revealed was below the amount that humans could taste, and below what would afford any health benefits. Supposedly, the amount of ginger that was present according to the company’s test was “ginger oleoresin,” a ginger extract.

The attorney representing the plaintiffs said that “although [Dr. Pepper] designed their entire marketing plan around convincing people that this product was healthy for you than regular old soda… it’s based on a lie, because it does not have any functional amount of ginger.”

After attacking the consumers’ premise for their Dr. Pepper Canada dry class action lawsuit, the company’s attorneys went on to attempt to have the expert findings tossed. According to Dr. Pepper, the consumer studies done by the plaintiffs’ expert were structured to sway participants and thus yielded based findings and should be tossed.

The consumers are represented by Adam J. Gutride, Seth A. Safier, Marie A. McCrary, and Matthew T. McCrary of Gutride Safier LLP and Hovanes Margarin of the Margarin Law Firm.

The Dr. Pepper Canada Dry False Advertising Class Action Lawsuit is Jackie Fitzhenry-Russell, et al. v. Dr. Pepper Snapple Group Inc., et al., Case No. 5:17-cv-00564, in the U.S. District Court for the Northern District of California.

UPDATE: On June 26, 2018, the plaintiffs in a Dr. Pepper Canada Dry class action lawsuitwon certification of their proposed Class of consumers who they say were duped by advertising that the fizzy beverage was “made from real ginger.”UPDATE 2: February 2019, the Canada Dry Ginger Ale class action settlement is now open.File a claim here. UPDATE 3: On July 5, 2019, Top Class Actions viewers started receiving checks for up to $22.40 as a result of theCanada Dry class action settlement. Congratulations to everyone who filed a claim and got PAID!