Coca-Cola urges court to toss class action over ‘artificial’ phosphoric acid

03-Dec-2015 - Last updated on 02-Dec-2015 at 20:10 GMT

Coca-Cola has urged a California federal court to toss a class action lawsuit alleging it misrepresents its flagship product as being free from added preservatives and artificial flavors.

The lawsuit* - which consolidates multiple class actions – alleges that phosphoric acid is a “man-made artificial chemical” used as an artificial flavor and preservative, and that Coke’s statement, “No artificial flavors. No preservatives added. Since 1886” is therefore false.

On its website, Coca-Cola says that phosphoric acid is added to cola beverages to "help provide their characteristic tangy taste", while the Coca-Cola-funded Beverage Institute for Health & Wellness notes that acidulants "which include phosphoric acid and citric acid" can "help to reduce the growth of microorganisms", although it doesn't say whether phosphoric acid serves this particular function in beverages such as Coca-Cola.

In court documents, however, Coke's lawyers argue that phosphoric acid does not serve as a preservative or flavor in Coca-Cola, and say the FDA does not consider phosphoric acid to be an artificial flavor and does not list it as one of the synthetic flavoring substances in 21 C.F.R. §§ 172.515(b) and 182.60.

Coca-Cola: Plaintiffs admitted label did not influence purchases

In its latest filing in the case, Coca-Cola said the plaintiffs all “admitted [under oath] that Coke’s ingredient panel—which lists phosphoric acid but does not identify it as a ‘flavor’ or ‘preservative’ (because it is neither)—had no impact on their purchasing decisions”.

Coca-Cola-ingredients_large — If Coke is using phosphoric acid to add tartness, argue the plaintiffs, 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... Similarly, if Coca-Cola is using it to prevent spoilage, they allege, phosphoric acid should be classified as a ‘chemical preservative’ as it is not a common salt, sugar, vinegar, spice or oil extracted from spices.

Moreover, the plaintiffs did not rely on the statement that Coca-Cola has contained “No artificial flavors. No preservatives added. Since 1886,” and suffered no injury as a result of that claim, argued Coke’s attorneys.

“If anything is clear at this point, it is that Plaintiffs have no viable attack on either Coke’s ingredient list or the 'Original Formula' claim. Most of the Plaintiffs never read or noticed these statements, and none relied on them to their detriment.”

Coca-Cola: ‘Meritless lawsuits are a play by class action lawyers to profit under the pretense of protecting people’

Speaking to FoodNavigator-USA about the cases last year, a Coca-Cola spokesperson said: "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."

*The case is 4:14-md-02555-JSW in the Northern District of California, and consolidates multiple class action lawsuits filed vs The Coca-Cola Company in 2013.