The Center for Science in the Public Interest (CSPI) has filed a putative nationwide class action in a federal court in California against Dr. Pepper Snapple Group, Inc., alleging that the company misleads consumers, through marketing and product labeling, to believe that the antioxidants contained in its beverages are derived from fruits and that the company’s use of antioxidants in soft drinks violates contrary Food and Drug Administration (FDA) regulations. Green v. Dr. Pepper Snapple Group, Inc., No. ___ (C.D. Cal., filed November 8, 2012).

By using the term “antioxidant” in the names of some of its beverages, the
company allegedly distinguishes its products “from similar soft drinks and,
thereby, command[s] a premium price for the Products.” According to the
complaint, “Contrary to Defendant’s claims and representations, the Products
do not contain any real cherries, real berries, or even extracts from those fruits.
Nor do the Products derive their antioxidant content from real, antioxidant-rich
cherries; real, antioxidant-rich raspberries, blackberries, and cranberries;
or real, anti-oxidant-rich pomegranates. Unbeknownst to the average
consumer, the Products contain only one antioxidant—vitamin E.”

The complaint also alleges that not only is the amount of vitamin E in the products minimal and thus unable to confer any health benefits, but the products also contain high-fructose corn syrup, artificial sweeteners and food coloring (Red 40) that carry their own purported health risks. The named plaintiff, a California resident, claims that he would not have purchased the products had he known the facts about their antioxidant content.

The complaint further alleges that “Defendant’s fortification of the Products with chemical additives is in direct violation of the FDA’s Fortification Policy. 21 C.F.R. § 104.20 (the ‘Fortification Policy’).” This policy states that FDA “does not encourage indiscriminate addition of nutrients to foods, nor does it consider it appropriate to fortify . . . snack foods such as . . . carbonated beverages.” FDA purportedly maintains that is policy has the force of law although it is only a guideline. And, according to the complaint, a federal court in Ne York found that while the policy “is itself non-binding . . ., [it] is incorporated by reference into binding FDA regulations.” The agency has apparently issued warning letters to the defendant and other companies “for similar violations of its Fortification Policy.”

Alleging violations of the Consumers Legal Remedies Act, California Business
and Professions Code (unlawful and fraudulent business acts and practices,
misleading and deceptive advertising) and unjust enrichment, the plaintiff
seeks restitution; disgorgement; injunctive relief; compensatory, incidental,
consequential, statutory, and punitive damages; interest; attorney’s fees; and
costs.

CSPI Executive Director Michael Jacobson said, “Non-diet varieties of 7UP, like
other sugary drinks, promote obesity, diabetes, tooth decay, and other serious
health problems, and no amount of antioxidants could begin to reduce those
risks. Adding an antioxidant to a soda is like adding menthol to a cigarette—
neither does anything to make an unhealthy product healthy.” CSPI claims to
have communicated its concerns about antioxidants in the company’s soft
drinks in May 2012, “but the company has since refused to correct its labels.”
See CSPI News Release, November 8, 2012.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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