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Consumers Allege Dishonesty from Honest Tea

When America’s war on heart disease was kicked into gear by President Eisenhower’s heart attack in 1955, dietary fat was deemed the culprit. In an effort to improve health, people sought low-fat alternatives to their favorite foods. The market reacted and “low fat” products began appearing. But over the last few years, nutritionists have increasingly blamed sugar and carbohydrates, rather than fat, for heart-health issues. Not surprisingly, product labeling and advertising evolved to address consumer perceptions. Products touting “reduced sugar” content or “no sugar added” became almost ubiquitous on supermarket shelves.

Because the descriptor “low sugar” is undefined by Food and Drug Administration (FDA) regulation, the FDA has issued warning letters to companies, making it clear that the use of “low sugar” on products is prohibited.

But what about the phrase “just a tad sweet”? Is that tantamount to a “low sugar” claim? This is what the plaintiffs have argued in a recent class action filed against Coca-Cola, which accuses the company of misleading consumers. Plaintiffs claim that the average consumer interprets that statement as a “low sugar” claim despite the fact that Honest Tea contains what plaintiffs argue is a “significant” amount of sugar—15 grams.

As in most labeling cases, the plaintiffs will have a tough road ahead. Because the FDA has yet to weigh in on the “just a tad sweet” terminology, there is no basis for federal preemption. Moreover, the hurdle of proving damages on a class-wide basis is substantial where it appears unclear how the purported misrepresentation impacted the sales price of the tea.

Most importantly, Plaintiffs must satisfy the reasonable consumer standard. As colorfully described by Judge Greaney, the relevant standard “depends on the likely reaction of a reasonable consumer rather than an ignoramus.” (1) There is no doubt that Coke will likely take full advantage of this standard, particularly where Honest Tea’s sugar content is clearly stated on the product’s nutritional fact panel. Thus, as with many labeling cases, the class plaintiffs’ fundamental challenge will be to convince the Court that they are attempting to rectify a concrete harm to consumers at large—not that their claims are lacking “just a tad” of common sense.

(1) Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 487 (Mass. 2004).

 

© 2020 Bilzin Sumberg Baena Price & Axelrod LLP

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About this Author

Melissa Pallet-Vasquez, Litigation Attorney, Bilzin Sumberg Law Firm
Partner

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in...

305-350-2393
Lori Lustrin, Commercial Litigation Attorney, Bilzin Sumberg Law Firm
Partner

Lori is a general commercial litigator who focuses on complex class-action and plaintiff opt-out antitrust litigation in federal court. In addition to antitrust work, her class action experience includes defending clients in the consumer products, homebuilding, real estate investment, and food and beverage industries.

Lori has also taken an interest in the emerging area of healthcare antitrust litigation and she has authored several articles on the subject. In addition to her varied federal court work, Lori has substantial experience in complex business litigation throughout the country, and has litigated cases involving intellectual property disputes, landlord-tenant disputes, land use disputes, bankruptcy issues, employment disputes, professional malpractice actions, unfair and deceptive trade practices issues, fraud, defamation, and products liability. Lori also has significant experience in alternative dispute resolution proceedings, including international arbitrations.

305-350-2385
Luis M. Reyes Litigation Lawyer Bilzin Sumberg Law Firm
Associate

Luis Reyes is an Associate in Bilzin Sumberg's Litigation Group. During his time at the University of Miami, Luis was elected to serve as both the Senior Articles Editor for the University of Miami Law Review, and as the Cristol-Kahn-Paskay Cup Vice President for the University of Miami Moot Court Board. Luis was a finalist at the Gaubatz Moot Court competition, winning awards for top overall competitor and top oral advocate. Most recently, Luis worked as judicial intern for the Honorable Paul C. Huck in the Southern District of Florida. 

305-350-2424