Lawsuit Over Deceptive Vitaminwater Claims to Proceed

A federal judge has denied Coca-Cola's motion to dismiss a lawsuit
over what the Center for Science in the Public Interest says are
deceptive and unsubstantiated claims on the company's "vitaminwater"
line of soft drinks. The company claims that vitaminwater variously
reduces the risk of chronic disease, reduces the risk of eye disease,
promotes healthy joints, and supports optimal immune function, and uses
health buzz words such as "defense," "rescue," "energy," and "endurance"
on labels.

Photo Credit: Jeff Cronin
Vitaminwater is hardly a health drink with 33 grams of sugar in each 20-ounce bottle.

Besides denying Coca-Cola's motion to dismiss, the ruling
contains other bad omens for the company. Judge John Gleeson of the
U.S. District Court for the Eastern District of New York found that the
company's use of the word "healthy" violates the Food and Drug
Administration's regulations on vitamin-fortified foods. The FDA's
so-called "Jelly Bean" rule prohibits companies from making health
claims on junk foods that only meet various nutrient thresholds via
fortification. The judge also found that vitaminwater's claim on the
"focus" flavor of vitaminwater that it "may reduce the risk of
age-related eye disease" runs afoul of FDA regulations.

The judge also took note of the fact that the FDA
frowns upon names of products that mention some ingredients to the
exclusion of more prominent ingredients such as, in the case of
vitaminwater, added sugar. The names of the drinks, along with other
statements on the label, "have the potential to reinforce a consumer's
mistaken belief that the product is comprised of only vitamins and
water," Gleeson wrote.

"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 [sugar] in the product," Gleeson continued.

"For too long, Coca-Cola has been exploiting
Americans' desire to eat and drink more healthfully by deceiving them
into thinking that vitaminwater can actually prevent disease," said CSPI
litigation director Steve Gardner. "In fact, vitaminwater is no more
than non-carbonated soda, providing unnecessary added sugar and
contributing to weight gain, obesity, diabetes, and other diseases. We
look forward to representing all Americans whom Coke has deceived."

The judge also rejected Coke's argument that
disclosing sugar content on Nutrition Facts labels eliminates the
possibility that consumers may be misled into thinking the product has
only water and vitamins, and little or no sugar. Gleeson cited a
similar case involving deceptive fruit imagery on packages for Gerber's Fruit Juice Snacks,
which are mostly corn syrup and sugar. That court held that
"reasonable consumers should [not] be expected to look beyond misleading
representations on the front of the box to discover the truth from the
ingredient list in small print on the side of the box." Vitaminwater
has 33 grams of sugar in each 20-ounce bottle.

The judge excluded one group of New Jersey-based
plaintiffs from the case but otherwise rejected Coke's arguments to
dismiss on jurisdictional grounds, paving the way for the plaintiffs'
lawyers to ask to take depositions of Coca-Cola executives, to ask for
discovery of key vitaminwater marketing documents, and to seek
certification as a class action.
Besides CSPI's litigation unit, Reese Richman LLP and
Whatley Drake & Kallas, LLC are representing the plaintiffs.
Michael Reese of Reese Richman and CSPI's Gardner argued in court for
the plaintiffs.

CSPI is also on the verge of suing McDonald's
over its use of toys to market unhealthful foods directly to young
children. In previous cases, CSPI has won a major pre-lawsuit
settlement agreement improving the nutritional quality of the foods Kellogg markets to children, and a settlement refunding millions of dollars to consumers who were deceived by the marketing of Airborne, a dietary supplement. CSPI is also in court in another case against Coca-Cola over deceptive claims by the company that its Enviga green-tea-flavored soft drink has "negative calories," thus promoting weight loss.