Healthy Skepticism Library item: 18501

Warning: This library includes all items relevant to health product marketing that we are aware of regardless of quality. Often we do not agree with all or part of the contents.

Publication type: Media Release

Lawsuit Over Deceptive Vitaminwater Claims to Proceed
Center for Science in the Public Interest 2010 July 23
http://cspinet.org/new/201007231.html

Abstract:

Court Finds Coke in Violation of Various FDA Regs and Denies Its Motion to Dismiss the Lawsuit

Full text:

A federal judge has denied Coca-Cola’s motion to dismiss a lawsuit over what the Center for Science in the Public Interest says are deceptive and unsubstantiated claims on the company’s “vitaminwater” line of soft drinks. The company claims that vitaminwater variously reduces the risk of chronic disease, reduces the risk of eye disease, promotes healthy joints, and supports optimal immune function, and uses health buzz words such as “defense,” “rescue,” “energy,” and “endurance” on labels.
Photo Credit: Jeff Cronin
Vitaminwater is hardly a health drink with 33 grams of sugar in each 20-ounce bottle.
Besides denying Coca-Cola’s motion to dismiss, the ruling contains other bad omens for the company. Judge John Gleeson of the U.S. District Court for the Eastern District of New York found that the company’s use of the word “healthy” violates the Food and Drug Administration’s regulations on vitamin-fortified foods. The FDA’s so-called “Jelly Bean” rule prohibits companies from making health claims on junk foods that only meet various nutrient thresholds via fortification. The judge also found that vitaminwater’s claim on the “focus” flavor of vitaminwater that it “may reduce the risk of age-related eye disease” runs afoul of FDA regulations.
The judge also took note of the fact that the FDA frowns upon names of products that mention some ingredients to the exclusion of more prominent ingredients such as, in the case of vitaminwater, added sugar. The names of the drinks, along with other statements on the label, “have the potential to reinforce a consumer’s mistaken belief that the product is comprised of only vitamins and water,” Gleeson wrote.
“In sum, plaintiffs’ allegations sufficiently state a claim that defendants have violated FDA regulations by making health claims about vitaminwater even though it does not meet required minimum nutritional thresholds, by using the word ‘healthy’ in implied nutrient content claims even though vitaminwater’s fortification does not comply with FDA policy, and by using a product name that references only two of vitaminwater’s ingredients, omitting the fact that there is a key, unnamed ingredient [sugar] in the product,” Gleeson continued.
“For too long, Coca-Cola has been exploiting Americans’ desire to eat and drink more healthfully by deceiving them into thinking that vitaminwater can actually prevent disease,” said CSPI litigation director Steve Gardner. “In fact, vitaminwater is no more than non-carbonated soda, providing unnecessary added sugar and contributing to weight gain, obesity, diabetes, and other diseases. We look forward to representing all Americans whom Coke has deceived.”
The judge also rejected Coke’s argument that disclosing sugar content on Nutrition Facts labels eliminates the possibility that consumers may be misled into thinking the product has only water and vitamins, and little or no sugar. Gleeson cited a similar case involving deceptive fruit imagery on packages for Gerber’s Fruit Juice Snacks, which are mostly corn syrup and sugar. That court held that “reasonable consumers should [not] be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.” Vitaminwater has 33 grams of sugar in each 20-ounce bottle.
The judge excluded one group of New Jersey-based plaintiffs from the case but otherwise rejected Coke’s arguments to dismiss on jurisdictional grounds, paving the way for the plaintiffs’ lawyers to ask to take depositions of Coca-Cola executives, to ask for discovery of key vitaminwater marketing documents, and to seek certification as a class action. Besides CSPI’s litigation unit, Reese Richman LLP and Whatley Drake & Kallas, LLC are representing the plaintiffs. Michael Reese of Reese Richman and CSPI’s Gardner argued in court for the plaintiffs.
CSPI is also on the verge of suing McDonald’s over its use of toys to market unhealthful foods directly to young children. In previous cases, CSPI has won a major pre-lawsuit settlement agreement improving the nutritional quality of the foods Kellogg markets to children, and a settlement refunding millions of dollars to consumers who were deceived by the marketing of Airborne, a dietary supplement. CSPI is also in court in another case against Coca-Cola over deceptive claims by the company that its Enviga green-tea-flavored soft drink has “negative calories,” thus promoting weight loss.