Asked whether this meant Coca-Cola was likely to settle, CSPI litigation director Stephen Gardner told FoodNavigator-USA.com: “There is no predicting whether it will result in a settlement.”
He added: “We've done some paper discovery, but no depositions [of Coca-Cola executives] yet. However, the real development is that the case is going to mediation in July. Until that is concluded, the discovery process is largely on hold.”
He added: “Mediation is fairly common in complex cases, including class actions. A mediator is usually a paid disinterested party who attempts to mediate a settlement. On a case like this, mediation is likely to last a day.”
Name could reinforce belief that product contains only water and vitamins
The lawsuit , which was filed in 2009 and brought together class actions in New Jersey, New York and California, alleged that Coca-Cola had misled consumers over the health benefits of VitaminWater.
Coca-Cola immediately filed a motion to dismiss the suit, which was rejected last summer.
Federal judge John Gleeson of the US District Court in Brooklyn also rejected Coca-Cola’s argument that by listing the sugar content of VitaminWater in the nutrition panel it could not be accused of misleading consumers: “The fact that the actual sugar content of VitaminWater was accurately stated in a Food and Drug Administration-mandated label on the product does not eliminate the possibility that reasonable consumers may be misled.”
Meanwhile, the description of the product as a ‘vitamin-enhanced water beverage’ and the phrases ‘vitamins + water = all you need’ also had “the potential to reinforce a consumer’s mistaken belief that the product is comprised of only vitamins and water,” added Gleeson.
Jelly bean rule
He also found that Coca-Cola’s use of health claims and the word ‘healthy’ violated FDA regulations on vitamin-fortified foods (the so-called ‘jelly bean rule’ rule that prohibits companies from making health claims on foods that only meet various nutrient thresholds via fortification).
“In finding VitaminWater’s marketing and labeling to be potentially misleading, I have given substantial weight to the FDA’s determination that fortification of a food in a manner that is not consistent with FDA’s fortification policy may be misleading because it may lead consumers to consume foods that contain sugar or other sources of calories, but lack any inherent nutrients other than those that have been added through fortification.”
The plaintiffs in the class action, who are also represented by Reese Richman LLP and Whatley Drake & Kallas, LLC, argue that "VitaminWater is Coke's attempt to dress up soda in a physician's white coat”.
UK ad watchdog: Calling VitaminWater nutritious is misleading
Coca-Cola has also run into problems in the UK with its VitaminWater range, most recently over ads claiming the beverages were 'delicious and nutritious', a claim which UK ad watchdog the Advertising Standards Authority (ASA) ruled to be misleading given the drinks' high sugar content.
“Because VitaminWater contained about a quarter of a consumer’s recommended daily intake of sugar, we considered that the description of VitaminWater as "nutritious" was misleading," said the ASA in January 2011.
The ASA accepted Coca-Cola’s point that 23g of sugar per 500ml bottle delivered an energy density of just 19 calories per 100ml, which meant it also qualified as a ‘low calorie’ drink under EU regulations.
However, it “also noted the drink was only available in 500 ml servings that contained 23 g of sugar, which comprised over a quarter of a consumer’s guideline daily amount for sugar [based on a 2,000 calorie diet]”.
Coca-Cola, which acquired the VitaminWater range in 2007 through its acquisition of Energy Brands (Glaceau), declined to comment on the US-based class action, adding: "We do not comment on specifics of pending litigation."