• On May 19, Coca-Cola filed a motion to dismiss in an Illinois federal court, requesting the judge to throw out a proposed class action alleging it misleads consumers into thinking its Fresca brand of soda water contains real fruit with no added sweetener. See Letoski et al. v. The Coca-Cola Co., case number 1:23-cv-00238, in the U.S. District Court for the Northern District of Illinois.
  • Earlier this year, consumers filed suit against Coca-Cola, alleging that its Fresca products’ “Grapefruit” and “Black Cherry” flavor descriptions, which are accompanied by vignettes of the relevant fruits, caused them to believe the soft drinks contain “non-negligible amounts” of “fruit ingredients.” Although the products contain “concentrated grapefruit juice,” the complaint alleges that the amount must necessarily be “de minimis” because (1) there is less grapefruit juice than “citric acid”; and (2) “based on industry estimates of the use of citric acid in carbonated beverages” the Fresca products probably contain “roughly 0.60 grams of citric acid.” This is deceptive, the complaint alleges, because the products contain only “fruit flavoring.”
  • Further, the plaintiffs allege that the term “soda water” caused them to think that Fresca is simply “carbonated water” without any “added sweeteners or flavorings,” when the Fresca products contain aspartame, a non-nutritive sweetener.
  • In its motion to dismiss, Coca Cola contends that the product labels are in full compliance with FDA’ food labeling regulations, arguing that the characterizing flavor regulation at 21 CFR 101.22(i) do not require real fruit ingredients to be in a product bearing fruit-related terms and vignettes, but rather must be accompanied only by a disclosure about the source(s) of the product’s flavoring ingredients (e.g., “natural flavors,” “other natural flavors,” or “artificial flavors”). Thus, according to the defendant, the ““Black Cherry Citrus Flavor with Other Natural & Artificial Flavors” designation and fruit vignette on Fresca communicates that the beverage contains black cherry flavors, not actual cherry ingredients. Additionally, the Fresca products contain “concentrated grapefruit juice,” a fruit-based ingredient.
  • Additionally, Coca Cola argues that plaintiffs have no basis to conclude the term “soda water” promises consumers a product with no added sweeteners, claiming the use of the artificial sweetener aspartame in Fresca is properly disclosed on product labeling. The company reasoned that a reasonable consumer interested in knowing about the presence of sweeteners in product can find the ingredients declared on the product ingredient list.
  • Keller and Heckman will continue to monitor consumer class actions regarding challenges to food label claims.