The CSPI’s lawsuit, which was filed in 2009 and brings together class actions in New Jersey, New York and California, alleges that Coca-Cola has misled consumers over the health benefits of VitaminWater.
Coca-Cola immediately filed a motion to dismiss the suit, which was rejected in 2010, but later agreed to enter mediation with the CSPI on July 19 this year.
But this would now have to be rescheduled, said CSPI litigation director Stephen Gardner.
“We had to cancel it [July 19 mediation] because there's been another copycat lawsuit filed, which we need to get before our court so we are negotiating on behalf of the entire bunch of lawsuits. We are trying to reschedule in September or October, but nothing's set yet.”
Gardner would not confirm who had filed the new suit.
Explaining why he had rejected Coca-Cola’s motion to dismiss the CSPI lawsuit last summer, federal judge John Gleeson of the US District Court in Brooklyn said the description of VitaminWater as a ‘vitamin-enhanced water beverage’ and the phrases ‘vitamins + water = all you need’ had “the potential to reinforce a consumer’s mistaken belief that the product is comprised of only vitamins and water”.
He 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.”
Jelly bean rule
Coca-Cola’s use of health claims and the word ‘healthy’ also 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), claimed Gleeson.
“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.”
Coca-Cola, which acquired the VitaminWater range in 2007 through its acquisition of Energy Brands (Glaceau), declined to comment, adding: "We do not comment on specifics of pending litigation."