Judge Richard G. Stearns of the Massachusetts District Court ordered on Tuesday to dismiss a lawsuit alleging that Polar Corp.’s ginger ale brands are marketed and advertised deceptively because they claim to be made from real ginger.
The plaintiff, Theresa Fitzgerald, reportedly argued that the defendant was falsely marketing its products to appeal to consumers who are looking for a healthier soda. She claimed that the natural flavor and trace amounts of ginger did not constitute real ginger. The plaintiff said she personally relied on the product’s claim when purchasing one-liter bottles of Polar Ginger Ale multiple times in the last four years.
Tuesday’s order said that reasonable consumers would not take a claim of “real ginger” in a drink to mean that the drink would have chunks of ginger root, but rather would assume that it had the taste of ginger.
The judge determined that the claim was “deceptively untrue” and that continuing the suit did not serve any public policy. The order said “in this case, however, the court does not accept as true the conclusory and erroneous allegation that consumers ‘understand the phrase “Made From Real Ginger” to mean that Polar’s soft drinks are made using real ginger root … and that the consumers who drink the soft drink will receive the health benefits associated with consuming real ginger.’”
To combat the claims, the defendant reportedly argued that the plaintiff did not adequately plead the fraud claims under Rule 9(b) of the Federal Rule of Civil Procedure. The judge agreed, dismissing the claim because the allegations reportedly did not give a plausible cause for relief and did not adequately represent a reasonable consumer.
The district court dismissed six claims including unjust enrichment, breach of express and implied warranties, negligent misrepresentation, and fraud. It ruled in favor of Polar Corp that the labeling did not actually include any false statement, especially as the plaintiff conceded that there was a “miniscule” amount of ginger in the drinks, and the defendant did not claim a specific amount or percentage of ginger in the drinks.
Fitzgerald was represented by Gutride Safier and Polar Corp. was represented by Gordon & Rees.
