Is the Coke Half Full or Half Empty?

Earlier this month, a California federal judge certified six classes asserting state consumer protection statute claims in a multidistrict litigation alleging that The Coca-Cola Co. misled consumers about artificial flavors and added preservatives in its Coke products. See In re: Coca‑Cola Products Marketing and Sales Practices Litigation (No. II), 4:14-md-02555, N.D. Cal. Plaintiffs did not secure a complete victory, however, because the court declined to certify the classes’ common law claims.

Case Background

In this case, plaintiffs claim that a Coke marketing campaign misled consumers about the healthiness and naturalness of Coke’s products. The plaintiffs allege that Coke’s statements that the products had “no artificial flavors” and “no preservatives added” are misleading because the products contained phosphoric acid at the time these statements were made. And while Coke no longer includes those labeling claims in its marketing campaigns, the products’ ingredient list still does not include phosphoric acid as a preservative.

Following the consolidation of various state lawsuits, plaintiffs sought class certification in 2017, seeking to certify individual classes of buyers from California, Florida, Illinois, Massachusetts, New Jersey, and New York.

Court Grants in Part and Denies in Part Plaintiffs’ Motion for Class Certification

In its opposition to plaintiffs’ motion for class certification, Coke made the argument that plaintiffs lack standing because it’s unclear if they will ever buy the Coke products again and, relatedly, that they cannot be misled going forward because they know now that phosphoric acid is in Coke products. Plaintiffs countered that all named plaintiffs would consider buying Coke if it were accurately labeled.

United States District Court Judge Jeffrey S. White agreed with plaintiffs, finding that each class had standing because at least one named plaintiff from each of the classes said they would purchase “properly” labeled Coke. Accordingly, each class had standing to seek an injunction to force Coke to change its labeling.

The court also concluded that, because the state consumer protection statutes relevant to each class premise liability on the reasonable consumer standard, the classes for each state could proceed without requiring individual inquiries into whether plaintiffs relied on Coke’s labels when purchasing the sodas.

Conversely, the court denied class certification of the common law claims. It found that plaintiffs cannot show that they meet the requirements for certification of those claims because plaintiffs seek damages that are not “incidental” to the injunctive relief they also seek.

Takeaway

This decision on class certification reinforces that plaintiffs do not have standing for injunctive relief claims unless they assert that they would purchase the products at issue in the future. Plaintiffs often forget to do so and even sometimes make assertions to the contrary thinking that doing so supports other arguments. When they do, defendants should use those very statements to preclude class certification.