October 24, 2021

Volume XI, Number 297

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October 22, 2021

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Ninth Circuit Rules No Future Harm to Coca-Cola Class

  • On August 31, the Ninth Circuit decertified a class of consumers that claimed Coca-Cola falsely labeled its drinks as having no artificial flavors when they contained phosphoric acid. This decision reversed a class certification order from a California federal judge, and agreed with Coca-Cola that the consumers lacked standing to pursue injunctive relief because they have not shown that they are at risk of suffering future harm.

  • The consumers alleged they were misled by Coke’s labels that claimed they had “no artificial flavors” and “no preservatives added” “since 1886” because the labels did not disclose the addition of phosphoric acid, which can be used as both a preservative and artificial flavor. That being said, several of the named plaintiffs stated that they were not actually concerned with the use of phosphoric acid, but were worried that Coca-Cola was not truthful on its product labels. In fact, those consumers stated that they would be interested in purchasing Coke gain if the labels were accurate, regardless of whether the product contained phosphoric acid.

  • According to the Ninth Circuit, the desire for Coca-Cola to truthfully labels its products was not enough to demonstrate any future harm. In the decertification memorandum, the court found that “[n]one of the plaintiffs in this case allege a desire to purchase Coke as advertised, that is, free from what they believe to be artificial flavors or preservatives, nor do they allege in any other fashion a concrete, imminent injury. Instead, as plaintiffs explained in their brief, they have ‘each stated that if Coke were properly labeled, they would consider purchasing it.’ Under governing law, such an abstract interest in compliance with labeling requirements is insufficient standing alone.”

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 244
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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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