The Coca-Cola Company filed a reply brief on Monday in the Ninth Circuit responding to allegations that the company should be disclosing that it includes either an artificial flavor or a chemical preservative, specifically phosphoric acid, in Coke. Coca-Cola has sold its product with the purportedly deceptive catchphrase “No artificial flavors. No preservatives added. Since 1886.”
Coca-Cola’s reply brief argued that the plaintiffs and the class did not have standing for injunctive relief because they did not show a risk of future confusion, a risk of injury, or any imminent injuries.
Monday’s filing said, “as the district court found, phosphoric acid has been a ‘mainstay’ of the iconic Coke formula for more than a century, and that is not apt to change. In the unlikely event that Coca-Cola were to remove phosphoric acid, that modification would be readily apparent from Coke’s ingredient list. In short, an injunction would not protect the named Plaintiffs from future deception, because no risk of future deception exists.”
The defendant alleged that the future risk of injury implied by the plaintiffs was not viable because they “already know all the relevant facts,” and the facts are “extraordinarily unlikely to change.” Thus, Coca-Cola said the plaintiffs could rely on the labels from the company. The company said the plaintiffs’ “professed academic interest” in the labels’ accuracy did not give standing for injunctive relief, and that the district court erred.
The plaintiffs and appellees filed their brief in the case at the end of September, and purported that they did have standing and that their knowledge that phosphoric acid is an artificial flavor does not eliminate their standing. The plaintiffs asked the Ninth Circuit to grant injunctive relief and require Coca-Cola to end its deceptive advertising practices by claiming that Coke is free of artificial flavors and preservatives. The California Northern District ruled in the plaintiffs’ favor, and granted class certification.
Coca-Cola is represented by Patterson Belknap Webb & Tyler. Appellees Rachel Dube, George Engurasoff, Yocheved Lazaroff, Michelle Marino, Paul Merritt, Joshua Ogden, Ronald Sowizrol, and Thomas Woods are represented by Barrett Law Group, P.A., Fleischman Bonner & Rocco LLP, Shelton Davis, and Pratt & Associates.
