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 claims as to the amount of ginger in Canada Dry,” the court noted, and the plaintiffs failed to support their argument that consumers would expect the product to contain more than “trace amounts” of ginger. Accordingly, the court granted summary judgment to that claim.

As to the allegation that Dr Pepper intended to mislead consumers about the health effects of Canada Dry—although “[t]he parties do not dispute that Canada Dry does not provide any measurable health benefit”—the court refused to grant summary judgment. “Dr. Pepper’s internal marketing documents strongly suggest that Dr. Pepper’s push to get consumers to associate Canada Dry with ginger-related health benefits may have been successful,” the court found. “In a 2014 study, Dr. Pepper’s third-party consultant concluded that over 30% of consumers who increased their ginger ale consumption did so because of the perceived health benefits. … Simply put, it would be odd for the Court to conclude that Dr. Pepper’s advertisements do not affect consumer expectations regarding Canada Dry, when Dr. Pepper itself believes that it had.”

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