US class action slams ‘chemical Coke’ for phosphoric acid use

Ronald Sowizrol brought the nationwide class action for damages against The Coca-Cola Company in the US District Court for the Northern District of Illinois last Thursday, March 18. It the latest in a series of copycat actions​ attacking the soda giant that began in August 2013.

Coke uses phosphoric acid in its flagship product as an acidulant to reduce micro-organism growth and to add tartness.

 “Faced with clear evidence it was losing market share because consumers increasingly preferred beverages without artificial flavoring and chemical preservatives,” ​Coke responded by providing consumers with they wanted, a natural and healthy drink, Sowizrol said.

Coke attacks 'meritless lawsuits' that mislead no-one​

The only problem from Sowizrol’s perspective, or that of his lawyers? Coke did so by allegedly deceiving consumers into thinking that Coca-Cola was natural and healthy when it actually contains artificial flavoring and chemical preservatives.

Coke strenuously denies these allegations. Susan Stribling, from the company's North American public affairs and communications team, sent us this statement today: "Since the first servings in 1886, Coca-Cola has had no artificial flavors or preservatives added. Our beverages are properly labeled in accordance with all applicable government regulations. ​

"These meritless lawsuits are a play by class action lawyers to profit under the pretense of protecting people. No one has been misled. This is simply a copycat of a complaint filed months ago, which we have moved to dismiss,"​ she added.

‘Bad corporate citizenship’ alleged​

“This choice by The Coca-Cola Company was not just an example of bad corporate citizenship – it also clearly violated federal and state laws specifically prohibiting the precise kind of misbranding and misleading behavior exhibited by The Coca-Cola Company,”​ Sowizrol claims.

Sales of the world’s most popular soft drink are “fueled by false and deceptive representations that Coca-Cola is not only a healthy product, but one free of artificial flavoring and chemical preservatives,”​ he adds.

Sowizrol says Coke was worried by falling CSD sales by 2008, and cites comment by Coke’s chief marketing and commercial officer (presumably Joseph Tripodi) at a November 2009 analyst day.

Naturalness trend a ‘Category 5’ hurricane…​

He warned that the consumer trend towards naturalness was a “category five”​ hurricane bearing down on Coke.

“This is not a fad. Consumers who classify themselves as LOHAS [Lifestyles of Health and Sustainability] or those who value natural ingredients represent in some markets 35% of the total market,”​ the executive told analysts.

Coke’s own ‘Beverage Institute for Health & Wellness’ website portrays drinks like red Coke as part of a healthy diet, Sowizrol continues; he then suggests the company is targeting kids by tilting at online copy there​ stating that: “Studies suggest that active children consume more fluids and stay better hydrated when liquid is flavored.”​

“Rather than reformulate Coca-Cola and their other soft drinks to appeal to these changing consumer preferences for natural and healthy beverages, defendants adopted a global campaign of disinformation, false advertising, false labeling and misbranding,”​ Sowizrol says.

‘Pemberton’ campaign fooled consumers – Sowizrol​

The example he gives is Coke’s ‘Pemberton’ campaign, which he claims was designed to fool consumers into thinking products were not artificially flavored or chemically preserved, since labels on bottles and cartons for cans stated ‘no artificial flavors. no preservatives added. Since 1886.’

“In so doing, they [Coke] not only misled and deceived consumers, but (as described below) broke a number of federal and state food labeling laws designed to protect consumers from such illegal and deceptive practices,”​ Sowizrol claims.

We can’t cover Sowizrol’s filing in full – it’s too long. But suffice it to say that he notes use of phosphoric acid in Coke as “both an artificial flavouring and a chemical preservative”.​

Under federal and state law Coke should disclose both the presence of such ingredients and ​their function, but Sowizrol cries illegal misbranding since, “nowhere on any Coca-Cola product does the label identify the function of phosphoric acid”.​

“Nowhere on any Coca-Cola product does the label state that the product contains artificial flavoring or chemical preservatives,”​ he adds. “In fact, many containers of Coca-Cola affirmatively state that they do not contain any artificial flavoring or chemical preservatives.”​

“The defendants are major food manufacturers and are well aware of the requirements of federal and state laws. Yet they have chosen to ignore these laws to increase sales and profits at the expense of consumers,”​ Sowizrol claims.

Attorney: Listing ingredient function could be 'slippery slope'​

We asked Kristen Polovoy, counsel in the commercial litigation and class action defence department of Montgomery McCracken LLP, whether Sowizrol had a point in attacking Coke for violating Federal and state laws by not detailing the function of phosphoric acid.  

On a state level, Polovoy (pictured) said this depended on the state where a claimant chose to file the suit, since "that state's consumer protection and food labeling laws are at issue".​

"There are nuances among states with respect to labeling. California is one of the more aggressive states with respect to restrictions on what must be labeled on food labels.​ California and New Jersey are usually more plaintiff-friendly forums in terms of choosing where to sue,"​ she said.

"On a Federal level, the Code of Federal Regulations Title 21 sets forth a laundry list of specific food labeling requirements, and it says in S.101.22​ that artificial flavorings have to be disclosed on the label or the wrapper, so that they can be easily seen and perceived by the consumer,"​ the lawyer explained.

Does Coke have a responsibility under these regulations to inform the consumer, as Sowizrol argues in his claim, about the function of phosphoric acid? 
"The goal of consumer fraud statutes is to make sure that the consumer is not misled, and if we take the plaintiffs in this particular case, and take their claims to their logical conclusion - then they're saying that food manufacturers have to disclose the purpose of everything that's on the ingredients list in a food," ​Polovoy said.

"But if you take this to logical conclusion you'd have to say, 'the baking powder was added to this cake or bread so that it rose'. It could become a slippery slope if we start demanding the function of every single ingredient in a product to educate the consumer about the purpose of everything that's in the food,"​ she added.

FDA master ingredients list defining 'natural' unlikely​

Last November, Polovoy told our sister site​ that a lack of a master ingredients list in Federal regulations defining what is and isn't 'natural' might offer Coke a viable defense route in this specific set of class actions, and she said she was skeptical about the Food and Drug Administration (FDA) developing such a document.

"When we think about natural, are we trying to define it according to the ingredients, or according to the processes that apply to ingredients? It would be hard to argue that sugar is not natural, it grows in a field. But what if we subject it to certain chemical or manufacturing processes? Does it then become unnatural?" ​she said.

"This simplistic example shows how complex getting a definition is,"​ Polovoy added, noting that the food and beverage industry in the US was pushing the FDA for guidelines along EU lines to define naturalness.

"Even as laudable and detailed as the EU's efforts are, I still think it's a very cumbersome process and there's no black and white answer to anything,"​ she said.

"For example, if you take phosphoric acid - the FDA would have to establish some type of rule-making body to decide on a case-by-case basis whether that ingredient is natural or not.​

"Is this possible? Yes. But the probability of it happening is questionable,"​ Polovoy added.

(Photo of Coke glass above: Stef Thomas/Flickr)