Tag Archives soda/soft drink

Three plaintiffs have filed a putative class action against Dr Pepper Snapple Group, Inc., claiming that although the label on the company’s Canada Dry Ginger Ale product says “Made With Real Ginger,” the product contains “no detectable amount of ginger.” Hashemi v. Dr. Pepper Snapple Grp., Inc., No. 17­-2042 (C.D. Cal., filed March 14, 2017). The plaintiffs argue that they hired an independent lab to test for ginger in the product, which is advertised on television with footage of the cans attached to ginger plants and a voice-over that asserts, “For refreshingly real ginger taste, grab a Canada Dry Ginger Ale. Real Ginger. Real Taste.” Seeking class certification, restitution, declaratory and injunctive relief, damages and attorney’s fees, the plaintiffs allege violations of the California and Colorado consumer-­protection statutes as well as breaches of warranties, fraud and misrepresentation.   Issue 628  

Four cities and one county have reportedly passed taxes on sugar-sweetened beverages (SSBs), joining Berkeley, California, and Philadelphia, Pennsylvania, in adopting measures purportedly designed to curb sugary-drink consumption. According to media sources, voters in Boulder, Colorado, passed a 2-cent-per-ounce excise tax on SSB distributors, while those in San Francisco, Oakland and Albany, California, passed a 1-cent-per-ounce levy on distributors. In Cook County, Illinois, the board of commissioners also voted in favor of a 1-cent-per-ounce SSB tax. “The tide has turned on this issue, and momentum has swung in our favor,” said Howard Wolfson, senior advisor to former New York City Mayor Michael Bloomberg. “I am confident in the months ahead more municipalities will seek to implement soda taxes to help their citizens, and we will be willing to help them as they do.” See The New York Times, November 9, 2016; Crain’s Chicago Business, November 10, 2016.   Issue 622

The World Health Organization (WHO) has published an October 2016 report claiming that “taxing sugary drinks can lower consumption and reduce obesity, type 2 diabetes and tooth decay,” according to a concurrent press release. Titled Fiscal Policies for Diet and Prevention of Noncommunicable Diseases (NCDs), the report collates information gathered during a May 2015 technical meeting of fiscal-policy experts who evidently concluded that “there is reasonable and increasing evidence that appropriately designed taxes on sugar-sweetened beverages would result in proportional reductions in consumption, especially if aimed at raising the retail price by 20% or more.” The report summarizes the effect of fiscal policies—including food and beverage taxes, nutrient-focused taxes and subsidies—on health outcomes in Denmark, Ecuador, Egypt, Finland, France, Hungary, Mauritius, Mexico, Philippines, Thailand and the United States. “Some of the challenges faced in implementation include a lack of appropriate capacity for tax administration, tax set at low levels that…

A consumer has filed a purported class action against PepsiCo and subsidiary Izze Beverage Co. alleging Izze carbonated juice drinks are misleadingly marketed as containing “no preservatives” despite the presence of citric or ascorbic acid. Lindberg v. PepsiCo Inc., No. 16-6569 (S.D.N.Y., filed August 19, 2016). The complaint also challenges Izze’s claim that each bottle “delivers two servings of fruit based on [U.S. Department of Agriculture’s (USDA’s)] 2010 Dietary Guidelines,” which is misleading because “the USDA did away with this measure of servings in its 2010 Guidelines precisely because it misleads consumers about how much of various food groups they should eat or drink.” The plaintiff asserts the dietary guidelines claim is also misleading because it “falsely suggests that Izze Sodas contain the nutritional value and health benefits that can be obtained by eating fruit. Whole fruit contains fiber, vitamins, and minerals. Even if Izze Sodas were originally manufactured with…

Two lawsuits challenging the inclusion of “evaporated cane juice” (ECJ) on ingredient lists will continue in light of the U.S. Food and Drug Administration’s (FDA) July 2016 nonbinding guidance recommending that “sugar” be listed instead. A California federal court refused to dismiss a lawsuit against Lifeway Foods alleging its kefir product packaging misled consumers into believing it contained no added sugar by including ECJ in the ingredients list. Figy v. Lifeway Foods Inc., No. 13-4828 (N.D. Cal., order entered August 16, 2016). The court found the plaintiff’s claims to be properly pleaded and was not persuaded by Lifeway’s argument that the expiration dates on the labels attached to the complaint suggested that the products were purchased after the plaintiff knew what ECJ is because the labels were merely examples of the product packaging rather than the specific products the plaintiff purchased. Details about Lifeway’s motion to the court arguing the…

Betty Inc., a Connecticut-based advertising agency, has filed a lawsuit alleging PepsiCo Inc. used its idea for a Super Bowl commercial without payment or attribution. Betty Inc. v. PepsiCo Inc., No. 16-4215 (S.D.N.Y., filed June 7, 2016). The complaint asserts that employees of Betty presented the idea for “All Kinds/Living Jukebox,” a tour through different musical genres and styles of dance representing the “Joy of Pepsi®,” in November 2015, then accepted PepsiCo’s request to refine the idea for a payment of $5,000. Betty argues it refined the idea but told PepsiCo that the $5,000 did not transfer any rights of use or ownership of the advertising concept. PepsiCo did not seek to further produce the concept after the refinement, but “[t]he Super Bowl halftime commercial PepsiCo aired during the 2016 Super Bowl copies, is fundamentally based on, and is derivative of, the ‘All Kinds/Living Jukebox’ advertising storyline Betty presented to…

The Philadelphia City Council Committee of the Whole has backed a 1.5 cents per-ounce tax on sugar-added and artificially sweetened soft drinks, a measure that the council anticipates will raise $91 million over the next year. If approved by final vote as expected, the tax will “fund quality pre-K expansion, community schools, reinvestment in parks and recreation centers, and help pad the City’s General Fund,” according to a June 8, 2016, press release. Philadelphia Mayor Jim Kenney (D) initially proposed a 3-cents-per-ounce levy on sugar-sweetened beverages, but the council concluded that such an increase would raise more revenue than needed. Instead, the committee opted to reduce the tax to 1.5 cents per ounce while expanding the scope to include diet soft drinks. The council also advanced a bill “offering tax credits to merchants that opt to sell healthy beverages in their stores.” “A 1.5-cent-per-ounce tax increase on soft drinks will…

A consumer has filed a lawsuit alleging that Chipotle Mexican Grill Inc. falsely advertised its food as free of genetically modified organisms (GMOs) despite serving meat products from animals fed GMOs and soft drinks that contain GMO corn syrup. Pappas v. Chipotle Mexican Grill, Inc., No. 16-0612 (S.D. Cal., filed March 10, 2016). The plaintiff alleges violations of California's consumer-protection law and seeks class certification, damages, an injunction, and attorney's fees. The complaint echoes the arguments in a similar California case dismissed without prejudice in February 2016 finding that the plaintiff's definition of GMO was inconsistent. The plaintiff has filed an amended complaint arguing that consumers "reasonably understand today that such claims would mean that Chipotle's menu is 100% free of GMOs and that Chipotle does not serve food sourced from animals that have been raised on GMOs or genetically engineered food." Gallagher v. Chipotle Mexican Grill, Inc., No. 15-3952…

With the launch of its Change4Life campaign, Public Health England (PHE) has issued a free bar code-scanning app that displays the sugar content of foods and beverages. Claiming that children ages 4 to 10 consume 22 kilograms of sugar per year—”the average weight of a 5-year-old”—the campaign also features TV, digital and outdoor advertising as well as educational packs to be distributed by schools. Among other things, PHE highlights tooth decay as “the most common reason” for hospital admissions among children ages 5 to 9. To this end, the “Smart Sugar” app allows users to scan product bar codes at supermarkets to display the sugar content in grams or cubes. According to PHE, which notes that a single serving of soda contains 9 cubes of sugar, the recommended daily maximum sugar intake is (i) “5 sugar cubes for children aged 4 to 6,” (ii) “6 sugar cubes for children aged…

“If any one name evokes unfettered truths about the sociopolitical machinations of ‘Big Food,’ it is that of Marion Nestle, professor of nutrition, food studies and public health at New York University,” proclaims physician David Katz in a review of Nestle’s new book, Soda Politics: Taking on Big Soda (and Winning). “Dominions of fizz,” Nature, October 1, 2015. Nestle describes, according to Katz, “softball” strategies employed by industry—“… scientific evidence on health effects, the industry’s impact on the environment and the preferential marketing of soft drinks to children, specific ethnic groups and poor people …”—as well as “the correspondence between the tactics of the soft-drinks and tobacco industries.” Those alleged tactics, Nestle asserts, include “’hardball’ strategies such as litigation, lobbying of Congress, and front groups such as New Yorkers Against Unfair Taxes, established by the beverage industry to oppose a soft-drinks levy.”   Issue 580

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