Antitrust Law Daily Wrap Up, ADVERTISING—WDMo: Consumers’ Claims Proceed Against Coca-Cola for Advertising Orange Juice Products as “Natural”, (Mar 4, 2013)

By Jody Coultas, J.D.

Purchasers of Simply Orange Juice, Minute Maid Pure Squeezed, and Minute Maid Premium stated false advertising claims against The Coca-Cola Company for falsely marketing the juices as being all natural, according to the federal district court in Kansas City, Missouri (In re: Simply Orange Orange Juice Marketing & Sales Practices Litigation, March 1, 2013, Gaitan, F.).

In a multidistrict litigation, the juice purchasers alleged that Coca-Cola, since 2006, falsely marketed and labeled its juice products as natural despite each product being heavily processed, pasteurized, deaerated, and flavored.

The purchasers’ claims were not preempted by federal laws or regulations, according to the court. Coca-Cola argued that the claims should be dismissed on the basis of express preemption of claims by private plaintiffs asking a court to usurp, preempt, or undermine the authority of the Food and Drug Administration (FDA) by imposing food labeling requirements that federal law does not. The Federal Food Drug and Cosmetic Act (FDCA) expressly preempts states from imposing any requirement for foods subject to a standard of identity that is not identical to the FDA’s regulations. Because the claims either sought to enforce state laws that impose requirements identical to those imposed by the FDCA or cover matters not directly within the scope of federal laws, there was no issue of preemption. Also, claims identifying specific representations by a manufacturer that are literally false, misleading, or contain material omission are actionable under state consumer fraud laws.

The court found the allegations sufficient to survive a motion to dismiss. While some courts prohibit a plaintiff from challenging ads they did not see, other courts have done so because a presumption of reliance does not arise when class members are exposed to quite disparate information from various representatives of a defendant. Where the alleged misrepresentations and false statements are part of an extensive and long-term advertising campaign, reliance on specific advertisements is not required. The purchasers’ allegations that they were subjected to long-term advertising were sufficient.

Coca-Cola’s argument that the allegedly false advertising at issue was either indisputably true or non-actionable commercial puffery could not be determined by the court based on the evidence that had been submitted.

The purchasers had standing to assert the false advertising, misrepresentation, and deceptive practices claims based on paying more for the juice products than they would have absent the advertising, according to the court.

The case is MDL No. 2361.

Attorneys: Matthew Lee Dameron (Stueve Siegel Hanson, LLP) for Paul Wieczorek. Adam R. Moore (Shook, Hardy & Bacon, LLP) for The Coca-Cola Company.

Company: The Coca-Cola Company.

Cases: Advertising MissouriNews