Fresca Sparkling Soda Water, Sweetener, and Flavoring Class Action

The Coca-Cola Company makes what it labels “sparkling soda water” in grapefruit and black cherry flavors. However, the complaint for this class action alleges the products are improperly labeled because (a) they contain a sweetener, which is not acknowledged on the label and (b) they do not contain the ingredients consumers expect to supply the grapefruit and black cherry flavors.

Two classes have been proposed for this action:

• The Illinois and Vermont Class is all persons in Illinois and Vermont who bought the products during the applicable statutes of limitations.
• The Consumer Fraud Multi-State Class is all persons in Utah, North Dakota, Kansas, Mississippi, Arkansas, Alaska, and South Carolina who bought the products during the applicable statutes of limitations.

The Food and Drug Administration (FDA), among others, has decided that consumers understand products labeled as “soda water,” “sparkling water,” “seltzer water,” or “fizzy water” to mean a water with carbonation but without sweeteners or flavorings. According to the complaint, the FDA says that the addition of artificial sweeteners to a soda water is an important fact that consumers should be told of on the front label.

Page 1 shows the two cans, labeled as “Sparkling Soda Water” and, just beneath this, the flavors of “Black Cherry Citrus” and “Grapefruit Citrus” with no qualifiers. However, page 2 of the complaint reproduces an ingredient panel from one of the drinks, listing “Aspartame” as one of the ingredients. The front labels show no hint that the drinks contain a sweetener.

At the bottom of the fronts of the cans are small-print statements of identity. One product says, “Sparkling Soda Water, Grapefruit Citrus Flavor, with Other Natural Flavors.” The other says, “Sparkling Soda Water, Black Cherry Citrus Flavor with Other Natural and Artificial Flavors. The fronts of the cans also show other indication of the flavors, with one showing a small whole grapefruit, leaf, and grapefruit wedge, and the other showing two cherries, stems and two leaves.

Page 3 shows the ingredient lists for both products. The second and third ingredients for the grapefruit product are “Citric Acid” and “Concentrated Grapefruit Juice.” These are the second and fifth ingredients for the black cherry product as well. (In between are “Natural and Artificial Flavors” and “Potassium Citrate.”)

The complaint alleges, “Consumers expect the Products’ citrus taste is from a non-de minimis amount of citrus fruit ingredients, like oranges, lemons or grapefruits, not citric acid, an additive.”

“Based on the analysis of flavor expert Bob Holmes,” the complaint contends, “if the Products provided ‘all the flavor depth’ and benefits of grapefruits and cherries, they would contain more grapefruit and cherry ingredients than additives.” However, the citric acid is listed before the grapefruit juice.

The complaint thus claims that the drinks are marketed with “false and misleading representations” about the flavoring of the drinks.

Article Type: Lawsuit
Topic: Consumer
Tags: Contains Sweetener, Deceptive Advertising, Deceptive Labels, Flavoring Source