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A California federal court has granted partial summary judgment in a class action alleging Keurig Dr Pepper falsely marketed Canada Dry as "Made from Real Ginger." Fitzhenry-Russell v. Keurig Dr Pepper Inc., No. 17-0564 (N.D. Cal., entered November 2, 2018). The court considered the results of multiple consumer surveys aiming to determine whether a reasonable consumer would interpret "Made from Real Ginger" as describing a product that is made from ginger root or a product that is made from ginger oleoresin, a flavoring made from ginger root. The surveys determined that some respondents were confused about the source of the ginger flavor based on Canada Dry's marketing. Finding that an issue of material fact remains, the court denied the motion for summary judgment on that claim. The court then turned to allegations about whether Dr Pepper misled consumers about the levels of ginger in the product. "The label makes no…

A federal court has reportedly refused to dismiss a mislabeling class action alleging Dr Pepper’s Canada Dry Ginger Ale contains “real ginger” but dismissed the plaintiffs’ fraud claims with leave to amend. Fitzhenry-­Russell v. Dr Pepper Snapple Grp., Inc., No. 17­0564 (N.D. Cal., motion hearing April 19, 2017). While the court found the plaintiffs’ labeling claims “plausible,” it rejected the fraud allegations for a lack of precision. The complaint asserts that the ginger ale’s label does not include “real ginger root” as an ingredient but lists chemical flavoring instead. A similar class action against Dr Pepper was transferred to California’s Northern District in April 2017; details on that action appear in Issue 628 of this Update. See Law360, April 19, 2017.   Issue 632

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