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Coke Loses Again as Vitaminwater Case Moves Forward

Federal Magistrate Recommends Certification of Class Action

July 18, 2013

Coca-Cola is one step closer to a trial over claims that it fraudulently markets "vitaminwater" as a healthful alternative to soda. Today a federal magistrate recommended to a federal district court that the suit, first filed in January 2009, may proceed as a class action.

CSPI and private law firms first sued Coca-Cola over the product's marketing, which included buzz words such as "defense," "rescue," and "endurance" on labels for various flavors of vitaminwater, as well as claims that the drinks could reduce one s risk of eye disease, promote healthy joints, support optimal immune function, and deliver other benefits.

Despite coming in dragonfruit, kiwi-strawberry, acai-blueberry-pomegranate, and other flavors, there are negligible amounts of juice in vitaminwater, typically less than half of a percent. What a 20-ounce bottle of non-diet vitaminwater does have is about eight teaspoons of sugar and 120 calories.

Coke's defense of its vitaminwater marketing quickly became a national laughingstock after it claimed, in 2010, that "no reasonable consumer could reasonably be misled into thinking vitaminwater was a healthy beverage." That year a federal judge denied Coca-Cola's motion to dismiss the lawsuit, finding that the company's use of the word "healthy" violated Food and Drug Administration regulations for vitamin-fortified foods, and that the claim that the "focus" variety of vitaminwater could help reduce the risk of eye disease violated other FDA regulations. The judge further held that the very names of the drinks could "reinforce a consumer's mistaken belief that the product is comprised of vitamins and water," especially in light of the fact that "there is a key, unnamed ingredient in the product" namely sugar.

The ruling today by United States Magistrate Judge Robert M. Levy recommends that the plaintiffs be able to litigate for declaratory and injunctive relief, but not for damages.

"Today's decision puts this case on a glide path toward a jury trial where Coca-Cola will have to defend under penalty of perjury the deceptive claims it has made and continues to make in connection with vitaminwater," said CSPI litigation director Steve Gardner. "That will put the company in the awkward position of squaring its marketing of vitaminwater as a healthy, disease-fighting drink with its later assertion that 'no reasonable consumer' would ever believe such marketing."

"The marketing of vitaminwater will go down in history as one of the boldest and brashest attempts ever to affix a healthy halo to what is essentially a junk food, a non-carbonated soda," said CSPI executive director Michael F. Jacobson. "Vitaminwater, like Coca-Cola itself, promotes weight gain, obesity, diabetes, heart disease, and cannot deliver on any of the dishonest claims it has made over the years."

Besides CSPI, the plaintiffs are represented by Michael Reese of the consumer protection law firm Reese Richman LLP and by Deborah Clark-Weintraub of Scott + Scott.