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Drink Deception and the Legal War on Vitaminwater
By Eric Spitznagel
July 26, 2013 1:17 PM EDT
Photograph by Jon Elswick/AP Photo

(Updates with comments from Glacéau)

So what is this lawsuit against Vitaminwater all about?
It was first filed in 2009 by the Center for Science in the Public Interest (CSPI), a Washington (D.C.)-based consumer advocacy group, and a group of Vitaminwater customers in New York and California. It alleges that brand’s parent company, Coca-Cola, took part in “deceptive labeling and marketing for the soft drink, which included claims that the drink could reduce rise for eye disease, promote healthy joints and support ‘optimal immune function.’” The complaint also takes issue with the company’s marketing campaign, which includes words like “defense,” “rescue,” and “endurance” on various Vitaminwater labels, suggesting that their product, a noncarbonated soda containing citric acid, crystalline fructose, and 8 teaspoons of sugar (per 20-ounce serving), is in any way healthy.

Wait—are there consumers who really think Vitaminwater contains actual vitamins?
Coca-Cola’s legal team would say no. In court briefings, attorneys representing the company claimed “no consumer could reasonably be misled into thinking Vitaminwater was a healthy beverage.” Stephen Gardner, chief litigator for the CSPI, thinks this argument is “utter nonsense. If you accept Coke’s construct, the first thing any consumer must do with any product is to assume the claims on the front of the label are a pack of lies and scrutinize the fine print on the back to learn what’s actually in the product.” “We firmly believe the plaintiffs’ claims are without merit and will ultimately be rejected,” said Lindsey Raivich, a spokesperson for Glacéau, the Coca-Cola subsidiary that makes Vitaminwater.

What’s the status of the lawsuit?
It took a big step forward last week, when U.S. Magistrate Judge Robert Levy in Brooklyn recommended that plaintiffs in the case should be able to litigate for declaratory and injunctive relief as a class action. (The entire ruling is published (PDF) on the CSPI’s website.) They cannot, however, seek financial damages.

So even if they win, they won’t get any money?
According to Gardner, who represents only the CSPI, the group’s focus in this legal action was “injunctive relief to stop ongoing bad behavior [from Coca-Cola].” As for the consumers involved in the lawsuit—the regular Joes who bought Vitaminwater believing it was actually good for them—Gardner thinks they’ll be just as happy with the ruling. “Money would be great, of course,” he says. “But—and I am speaking for all the lawyers—our primary goal was injunctive relief, so we are all quite satisfied with this report.” (Lawyers representing the other plaintiffs didn’t respond to requests for comment.)

Is the lawsuit against Vitaminwater going to open the floodgates to even more lawsuits against so-called healthy drinks?
The floodgates are already open. In November the CSPI filed a federal class-action lawsuit against Dr Pepper Snapple Group on behalf of a California consumer, claiming misleading information on regular and diet varieties of 7Up Antioxidant sodas, including cherry, mixed berry, and pomegranate. Although the beverages contained small amounts of vitamin E, the labels—which featured pictures of fruit—could feasibly confuse customers, according to the CSPI, into thinking the products were fortified with antioxidants from actual fruit or fruit juice. The suit was settled (PDF) out of court last week, when the Plano (Tex.)-based DPSG agreed to remove all references to “antioxidant” on the products’ labels. (The company has claimed their decision was not related to the lawsuit.)

In January, the Federal Trade Commission found POM Wonderful, makers of several fruit-based beverages, guilty of “deceptively advertis[ing] their products and did not have adequate support for claims that the products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, and that they were clinically proven to work.”

Wait—
Hold on, there’s more. Yet another class-action lawsuit, this one filed in 2011 against Naked Juice—owned by PepsiCo—claimed that several of Naked’s juice and smoothie products contained misleading or false information, like that the contents were “all natural” or contained “nothing artificial.” The drinks in fact included numerous synthetic ingredients, such GM soy, fructooligosaccharides and inulin. As of last week, the company agreed to a $9 million settlement, which includes removing the misleading labels and hiring an independent tester to determine just how many genetically modified organisms (if any) are in their drinks.

Does this mean consumers will stop buying Vitaminwater or Naked Juices now?
Probably not. Dr. Melina Jampolis, a physician nutrition specialist, believes that consumers want and deserve a little more truth in advertising, but that doesn’t mean they’re becoming more media-savvy. “Many people are confused by all the information out there and don’t know what is healthy,” she says. “Product marketing can still strongly influence their decisions.”

There’s also the question of whether the target demographics for these beverages are even aware of the various lawsuits. “The main consumer base for things like Vitaminwater skew younger, and I’m not sure they’re paying that much attention,” says Dr. Jampolis. “I can certainly see younger women cutting back on intake somewhat if they hear that Coca-Cola is admitting [that Vitaminwater] isn’t healthy. But I’m not sure about the rest.” Even the CSPI’s Gardner isn’t entirely optimistic: “It might have minor impact on sales, because some consumers do pay attention to reports of court cases,” he says. “Unfortunately, all the news reports in the world can’t overcome Coke’s advertising budget.”

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