A federal judge won’t pour out the entirety of a class action accusing Coca-Cola of misleading customers about the presence of ingredients in Fresca, including artificial sweeteners.
Mark Letoski and Roger Fox sued the soft drink giant, alleging the black cherry citrus and grapefruit citrus flavors of its signature sparking soda water product had deceptive labels in violation of consumer fraud laws in Illinois and Vermont. Specifically, they allege the drinks contain aspartame, whereas consumers presume anything sold as soda water is free of sweeteners. Letoski further alleged pictures of cherries and grapefruits on Fresca cans lead buyers to presume fruit ingredients, rather than concentrated juice or citric acid.
In his decision, U.S. District Judge Manish Shah partially granted Coca-Cola’s motion to dismiss the complaint. He said Fox, as a Vermont resident who bought Fresca in Connecticut, didn’t allege Coca-Cola had any contacts within Illinois that affected his purchase.
Regarding Letoski’s claims under Illinois law, Shah noted the labels comply with the regulations of the federal Food, Drug and Cosmetic Act and said he conceded “the regulations dictate that a ‘fruit vignette’ is a representation to the primary characterizing flavor rather than a guarantee about the presence of fruit ingredients.”
Letoski did still attempt to challenge the legality of specific disclosures on Fresca cans, but Shah wrote “the regulations only require that the disclosures be displayed in text at least one-half the height of the letters in the name of the characterizing flavor. Letoski doesn’t allege that the bottom-left text on the Fresca cans was less than half the height of the ‘black cherry citrus’ or ‘grapefruit citrus’ text nor does it appear to be too small based on the images provided. The text disclosing natural and artificial flavors was not so far apart from the other labels that a consumer wouldn’t have read them together — the flavor disclosure directly followed the text, ‘sparkling soda water.’ ”
Turning to the issue of sweeteners, Shah said Letoski’s claim relied on an understanding that “soda water” is analogous to “club soda,” a product traditionally free of all sweetening ingredients. He pointed to consumer websites making that connection as well as a U.S. Food and Drug Administration standard defining soda water as “the class of beverages made by absorbing carbon dioxide in potable water… which is neither flavor nor sweetened.”
But Coca-Cola argued the term “soda water” carries no such implications and said the FDA repealed the standard Letoski cited and declined to force companies to call such products “artificially sweetened [sparkling] soda water.” While Shah agreed the complaint could not survive based on the FDA allegation, he said that is not enough to defeat the entire claim.
“The allegation of how a reasonable consumer understands ‘sparkling soda water’ or ‘soda water’ is not a fanciful or unreasonable interpretation as a matter of law,” Shah wrote. “Letoksi relies on his and Fox’s perception of the product label and points to one consumer’s take on Fresca products. At this stage, that is enough.”
Coca-Cola said the labels of two fruit-flavored Fresca varieties make it clear the cans don’t contain plain carbonated water, but Shah said there is no settled law on whether the clear presence of flavor dispels reasonable expectations about other ingredients. He also said the listing of aspartame on the can’s back-label ingredients menu and FDA-required disclosure of phenylalanine don’t inherently defeat claims about the front of the label.
“Flavoring and sweetening may be understood as different representations, just as flavoring is not construed as a promise of real fruit ingredient content,” he wrote. “Ultimately, how reasonable consumers actually understand ‘sparkling soda water’ is a matter of fact that is ‘subject to proof that can be tested at trial.’ ”
Shah used the same reasoning in rejecting dismissal of Letoski’s breach of express warranty claim, but said his breach of implied warrant claim fails because there is no allegation of how the inclusion of aspartame would make Fresca unfit for consumption as a beverage. He further tossed the negligent misrepresentation claim, noting Illinois law bars claims like Letoski’s that allege only economic loss and rejecting his argument the company’s conduct rises to the standard of professional malpractice.
He likewise tossed a fraud claim, saying the complaint lacked the requisite allegations of intent, but allowed survival of an unjust enrichment claim, as it is tied to the dispute over the term soda water.
Coca-Cola, which did not respond to a request for comment, is represented by Patterson Belknao Webb & Tyler, of New York, and Faegre Drinker Biddle & Reath, of Chicago.
Plaintiffs are represented by attorney Spencer Sheehan, of the firm of Sheehan & Associates, of Great Neck, New York. The firm did not respond to a request for comment.