Consumers Claim Ninth Circuit Should Affirm Ruling that Coke Must Disclose Artificial Flavor

Appellees filed a brief on Wednesday in the Ninth Circuit claiming that they do have sufficient standing to be granted injunctive relief in a case against Coca-Cola Refreshments USA. The case revolves around an allegation that phosphoric acid which is found in Coke is either an artificial flavor or a chemical preservative and that the company acted deceptively and illegally when not disclosing it in their advertising, which they claim is free of artificial flavors and preservatives.

The case is an appeal filed in June by Coca-Cola after Judge Jeffrey S. White’s decision in the Northern District of California Court. The plaintiffs in their brief argue that the District Court correctly interpreted the evidence and legal precedent when ruling in their favor. It ruled that the plaintiffs’ knowledge that phosphoric acid is used as an artificial flavor does not “deprive them of standing,” and that the plaintiffs satisfied their burden for class certification. 

“The District Court correctly interpreted and applied Davidson in determining that at least one  Plaintiff from each of the states-at-issue possessed  Article  III standing, and that decision was not premised upon finding that the Plaintiffs merely had an ‘academic’ interest in ensuring that Coke’s label complies with regulatory requirements,” the brief concluded. “The District Court also conducted a more-than-adequate, and highly rigorous  examination  of  each  and  all  of  Rule  23’s  factors,  including  evidence proffered by Plaintiffs concerning commonality and materiality.” 

The brief said that the plaintiffs each stated that they would consider purchasing Coke again if it were represented accurately, some saying they still occasionally purchase the drink. However, they said that an injunction requiring Coca-Cola to accurately display the purpose of phosphoric acid in their advertising is “the only way to give Plaintiffs and the Class confidence in their future purchases.” Reportedly, Coca-Cola admitted that the acid is used to add tartness and acidity. 

According to the brief, phosphoric acid is present in many sodas, but, unlike Coke, others disclose that they contain artificial flavoring or a chemical preservative. Instead, Coke said that it contains “no artificial flavors. No preservatives added. Since 1886. The plaintiffs called this a “deceitful catchphrase.” 

Coca Cola is represented by Patterson Belknap Webb & Tyler. Appellees Rachel Dube, George Engurasoff, Yocheved Lazaroff,  Michelle Marino, Paul Merritt, Joshua Ogden, Ronald Sowizrol, and Thomas Woods are represented by Shelton Davis and Pratt & Associates. Appellees Rachel Dube, George Engurasoff, Yocheved Lazaroff,  Michelle Marino, Paul Merritt, Joshua Ogden, Ronald Sowizrol and Thomas Woods are represented by Barrett Law Group, P.A. and Fleischman Bonner & Rocco LLP.