Jonathan Bilyk Mar. 25, 2014, 10:24am

Coca-Cola could be forced to defend some of its efforts to market its namesake product, after a suburban Cook County man filed a class action lawsuit accusing America’s largest beverage company of falsely touting its popular cola as being free of artificial flavors or preservatives “since 1886.”

On March 18, attorneys Shannon M. McNulty and Robert A. Clifford of Clifford Law Offices in Chicago brought the suit in Chicago's federal court against Atlanta, Ga.-based Coca-Cola Co. on behalf of plaintiff Ronald Sowizrol, who seeks to represent a proposed class the lawyers estimate could number in the millions.

In the six-count complaint, Sowizrol alleges that many of the two-liter bottles and 12 and 24-can packs of Coca-Cola contain language that indicates the carbonated cola beverage containes “no artificial flavors. No preservatives added. Since 1886.”

The complaint centers solely on the marketing of the product known as Coca-Cola Classic, and does not include Coca-Cola’s other brands or products, including Diet Coke, Cherry Coke or Caffeine Free Coca-Cola.

Sowizrol claims the language was included intentionally by Coca-Cola under a marketing strategy referred to in the complaint as the “Pemberton Campaign,” so named to reference Atlanta pharmacist John Pemberton, who invented Coca-Cola’s original formula in 1886.

The suit alleges the campaign was concocted by Coke in response to sagging sales of its sweetened carbonated soft drinks in the last decade, a decline driven by increasing demand among consumers for healthier beverage products or those containing only natural ingredients.

Sowizrol asserts that Coca-Cola’s campaign, designed to hearken to its past, amounted to “a global campaign of disinformation, false advertising, false labeling and misbranding … designed to fool consumers into the erroneous belief that their products were not artificially flavored or chemically preserved.”

Despite those marketing claims, the suit asserts the beverage actually contains phosphoric acid, an ingredient that, by industry standards, is not considered a natural additive. It further alleges that Coca-Cola adds phosphoric acid to the drink to add “tartness” and as a “chemical preservative” to “retard spoilage.”

By adding the ingredient to the beverage, while claiming in a marketing campaign and on labeling that the drink is free of artificial flavors and preservatives, Sowizrol contends Coca-Cola has violated both federal and Illinois laws requiring food and beverage makers “to disclose the presence of artificial flavoring and chemical preservatives in food products” and “to clearly state the function of any ingredient that is used as either an artificial flavoring or a chemical preservative.”

However, Coca-Cola’s packaging doesn’t include language prominently declaring the presence of the phosphoric acid or other artificial additives, the complaint asserts.

Because of these alleged violations, Sowizrol claims Coca-Cola’s product is “illegal and misbranded,” and therefore, “economically worthless.” And, if worthless, Sowizrol contends that he and other consumers who purchased the cola in reliance of its labeling, are in line for damages as compensation for paying “a premium” to Coca-Cola for products that could not be “legally resold” in the U.S.

The complaint alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Food, Drug and Cosmetic Act, as well as negligence, misrepresentation and unjust enrichment against Coca-Cola.

The suit does not specify damages sought.

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