But while he allowed most claims in the case to proceed, US district judge Jeffrey White also admonished the plaintiffs “to the extent they view this case, or the related cases, as an opportunity to settle a class action and obtain a large sum of attorneys’ fees”.
Noting that the plaintiffs' lawyers had spent "unnecessary hours" on the case, including filing a "15-page brief along with voluminous exhibits" when ordered to provide supplemental briefings about a related case, he warned: “The Court will review any request for attorneys’ fees as part of a class action settlement with close scrutiny.”
Phosphoric acid is being as an artificial flavoring and/or as a chemical preservative in Coke, claims lawsuit
The class action lawsuit - filed by plaintiffs George Engurasoff and Joshua Odgen in August 2013 - is one of several similar lawsuits* that may be consolidated into one case, and has been blasted by Coca-Cola as a cynical "play by class action lawyers to profit under the pretense of protecting people".
It accuses Coca-Cola of misrepresenting Coke as being free from added preservatives and artificial flavors, when it contains phosphoric acid, which the plaintiffs claim is used as a “man-made artificial chemical” being used as an artificial flavoring' (to “add tartness”) and as a chemical preservative (to “reduce the growth of micro-organisms”).
Under federal law, they allege, if Coke is using phosphoric acid to add tartness, it should be classified as an ‘artificial flavor’ because it imparts flavor but is not derived from natural sources such as fruit or vegetable juices, spices, plant materials or dairy products, among other things.
Similarly, if Coca-Cola is using it to prevent spoilage, they allege, phosphoric acid should also be classified as a ‘chemical preservative’ as it is not a common salt, sugar, vinegar, spice or oil extracted from spices, among other things.
“Under the [federal] Food Drug & Cosmetic Act and [California’s] Sherman Law, defendants must disclose that a product ingredient is being as an artificial flavoring and or as a chemical preservative.”
Judge not persuaded by Coca-Cola’s counter-arguments
Coca-Cola begged to differ, but Judge White was not persuaded by its counter-arguments at this initial stage of the case.
First, Coca-Cola argued that because phosphoric acid is not listed as one of the substances in 21 C.F.R. §§ 172.515(b) and 182.60, the FDA did not consider it to be an artificial flavor. “However, as the regulation states,” said Judge White, “these lists are not exhaustive”.
Second, Coca-Cola argued that an artificial flavor has to impart a ‘characteristic flavor’, citing 21 C.F.R. §§ 170.3(o)(11), (12). But these regulations, standing alone, he added, “are insufficient to insert a requirement that all artificial flavors, by definition, must impart a characteristic taste and/or aroma”.
He added: “Plaintiffs allegations appear sufficient to show, at this procedural stage, that phosphoric acid was used to impart flavor.”
Claims are not preempted, says judge
As to whether phosphoric acid is used in Coke as a ‘chemical preservative’, said Judge White, Coca-Cola argued that chemical preservatives only include ingredients that are specifically added to food for their preservative function, and that, phosphoric acid does not meet this definition for Coke.
But even if this is the correct interpretation of the law, “it would require a factual determination that is not appropriate at this procedural stage” of the case, he said.
“Accordingly, the Court cannot find, as a matter of law upon a motion to dismiss, that Plaintiffs’ claims with respect to chemical preservatives are expressly preempted. Nor does the Court find that Plaintiffs’ claims are impliedly preempted or that the Court should abstain from deciding their claims pursuant to the primary jurisdiction doctrine.”
Therefore, he said, the case can proceed (although he dismissed the plaintiffs’ claim for breach of the implied warranty plus a couple of other claims relating to Coke’s ‘original formula’ - with leave to amend).
Coca-Cola: 'These meritless lawsuits are a play by class action lawyers to profit under the pretense of protecting people'
However, Coca-Cola told FoodNavigator-USA that the lawsuit was "meritless" and that the court's latest ruling "is not a decision on the merits of the case", but "simply means that the case will continue on to discovery".
A spokesman added: "Since the first servings in 1886, Coca-Cola has had no artificial flavors or preservatives added. Our beverages are properly labeled in accordance with all applicable government regulations. No one has been misled.
"As we have maintained all along, these meritless lawsuits are a play by class action lawyers to profit under the pretense of protecting people and we are confident that this matter will ultimately be resolved in our favor."
A case management conference is scheduled for September 26, said Judge White, noting that this is also the deadline to file a consolidated complaint if the parties involved in several related lawsuits agree to work together.
*The case is: George Engurasoff and Joshua Ogden vs The Coca-Cola Company and Coca-Cola Refreshments USA, Inc, filed in August 2013 (13-cv-03990);
Other related cases include: Paul Merritt vs BCI Coca-Cola Bottling Co. of Los Angeles and Coca-Cola Bottling Company of Sonora, Calif., filed in mid-October 2013 (14-cv-01067); and Ayanna Nobles and Julia Hughes vs Coca-Cola Refreshments USA Inc and the Coca-Cola Company filed in late October, 2013 (13-cv-05017).