Consumer Law

Truth 1, vitaminwater 0

By Stephen Gardner

by Steve Gardner

The Center for Science in the Public Interest, working with private plaintiff firms Reese Richman, LLP  and Whatley Drake & Kallas, were pleased to get a very well-considered opinion in our lawsuit against Coke involving vitaminwater (Coke  uses the lower case, as does the Court, so I grudgingly do as well).

I say that the opinion is "well-considered" because the Court wrote thoughtfully and well on many nuances of the law involving FDA regulation of food labels and the interplay with state consumer protection law.

Of course, it's nice that the Court roundly rejected almost all of Coke's arguments.

In short, our lawsuit says that it's deceptive to call a sugar-water drink "vitamin"-anything and the opinion essentially agreed that this states a cause of action.

Particularly nice language from the opinion (verbatim quotes, but with emphases added and comment in brackets):

• Page 23: [T]he statements on the ?defense? and ?BRelaxed? labels constitute implied nutrient content claims which use the word ?healthy.? Such claims are in violation of violation of FDA regulations because, as discussed below, vitaminwater achieves its nutritional content solely through fortification that violates FDA policy.

• Page 24: Because vitaminwater does not meet the minimum nutritional requirements of 21 C.F.R. § 101.14(e)(6), any health claim about the product is contrary to FDA regulation.

• Page 27: In sum, plaintiffs? allegations sufficiently state a claim that defendants have violated FDA regulations by making health claims about vitaminwater even though it does not meet required minimum nutritional thresholds, by using the word ?healthy? in implied nutrient content claims even though vitaminwater?s fortification does not comply with FDA policy, and by using a product name that references only two of vitaminwater?s ingredients, omitting the fact that there is a key, unnamed ingredient in the product [that'd be sugar].

• Page 33: The fact that the actual sugar content of vitaminwater was accurately stated in an FDA-mandated label on the product does not eliminate the possibility that reasonable consumers may be misled. This issue was squarely addressed in    a recent case applying California law, Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008). [CSPI was lead counsel in the Gerber appeal, although we chose not to be involved on remand.]

• Page 34: [E]ven reasonable consumers may not read the nutritional label prior to every purchase of a new product.

• Page 36 (In response to Coke?s claim that their marketing was just silly old puffery): [C]onsumers who have some awareness that food product labeling is subject to government regulation (owing in part to the ubiquitousness of the FDA?s ?nutrition facts? label on food products) may reasonably be expected to rely on label claims as accurate depictions of a food?s contents and nutritional value. As a New Jersey court observed in another context: ?it seems clear that such an impression was precisely what defendant intended to convey. If that were not the case, it is difficult to understand what defendant had in mind.? Miller v. Am. Family Publishers, 284 N.J. Super. 67, 80 (Super. Ct. Ch. Div. 1995).
  

There is a great discussion of preemption, both generally and specifically under the Food, Drug & Cosmetic Act, at pp. 12-28. 

One finding that I believe incorrect is where the court finds that FDA's refusal to include sugar as a disqualifying ingredient for health claims has affirmative preemptive effect: "any claim under state law solely premised on the notion that vitaminwater?s high sugar content made its health or implied nutrient content claims misleading is preempted by the FDA?s express decision to not recognize sugar as a disqualifying nutrient." But this is a very narrow issue and did not hurt the lawsuit.

There's also a great discussion of pleading standards under both Rule 8(a) and post-Iqbal-9(b) at pages 31-50, finding that our pleading adequately plead reliance and injury under Cal and NY law. 

It's an incredibly good decision for the growing ranks of food and nutrition lawyers, but the pleading discussion in particular is good news for all of us, Cali and NY lawyers in particular.

Full post as published by CL&P Blog on July 25, 2010 (boomark / email).