To Disclose Or Not Disclose, Coke Asks the Question

On the heels of an adverse ruling regarding the alleged deceptive advertising of its VitaminWater line, Coca-Cola finds itself back in court facing similar claims over its soft drinks. According to reports, George Engurasoff and Joshua Ogden have sued Coke, alleging that the company has been deceiving consumers by failing to mention that its signature soft drink contains artificial ingredients. These plaintiffs drink only organic, all-natural soft drinks, apparently.

The plaintiffs take particular exception to Coke’s alleged use of phosphoric acid as a flavor-enhancer. According to the plaintiffs’ complaint, Coke’s website indicates that phosphoric acid is “one of the basic elements of nature” and is used in certain soft drinks “to add tartness to the beverage.” These claims, according to the plaintiffs, are misleading. Phosphorous is a naturally occurring element bearing the atomic number 15 on the periodic table. Phosphoric acid, on the other hand, is not one of those “basic elements of nature.” As such, the plaintiffs allege that it is an artifical flavoring – one that has not been disclosed by Coke.

Whether or not phosphoric acid is an artificial flavoring is a question we here at Abnormal Use will leave for the court. Regardless of the answer, we do question just how these plaintiffs have been damaged. They claim that they relied on the soft drink’s labeling and would not have purchased Coke had they known its true contents. Call it a hunch, but we doubt there were too many true “all-natural” soft drink alternatives out there. We also doubt they were all that concerned about phosphoric acid consumption in the first place. Here is the real kicker. They allege that they have only purchased around $25 worth of Coke in the last four years. Using loose, faulty math, $25 of Coke over four years equates to one can of Coke per month. One can. From someone who consumed $25 worth of Coke in the last four days, we don’t feel too sorry for these plaintiffs’ loss of investment.

We agree that there are valid reasons for product labels and that companies should abide by those regulations. But if a class wants to organize and sue a company over it, make sure the named plaintiffs are out more than $25.

The lawsuit is George Engurasoff, et al. v. the Coca-Cola Co., No. 1:13-cv-03990S (N.D. Ca. 2013)

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