A federal court in New York recently denied an effort to dismiss a consumer class action based on allegedly deceptive nutrient content and health claims made in relation to the highly popular VitaminWater beverage.(We have previously blogged about this case here).
The consumer advocacy group Center for Science in the Public Interest (CSPI), along with a plaintiff’s firm, claims that VitaminWater’s labeling and marketing mislead consumers by (1) drawing consumer attention away from a significant amount of sugar in the product; (2) portraying VitaminWater as a healthy snack food that provides nutritional benefits, when the nutrients in question are only available in the product through fortification; and (3) suggesting VitaminWater contains nothing but vitamins and water.
Defendants moved to dismiss the claims arguing the claims were preempted by the Federal Food, Drug, and Cosmetic Act (FDCA).
Plaintiffs countered, arguing a lack of preclusion of their state law claims because the claims are based on misleading statements that violate FDA regulations. The Complaint alleges violations in the form of (1) making health claims or implied nutrient-content claims despite the high amount of sugar in the product (up to 33 grams of sugar per 20 oz. bottle); (2) making health claims about the product despite the fact that VitaminWater has been fortified with vitamins in violation of FDA’s fortification policy; and (3) prominently featuring the name of some, but not all of the ingredients on the product and in its name.
The court pointed out that while the FDA has recognized some “disqualifying nutrient levels” (i.e., levels of a particular nutrient such as fat, saturated fat, cholesterol, or sodium that preclude promoting health claims in conjunction with such a product), sugar was not placed on that list and hence, “any claim under state law solely premised on the notion that vitaminwater’s high sugar content made its health or implied nutritent content claims misleading is preempted.
Defendants’ victory, however, was small and short-lived, as the Court’s opinion went on to find that the arguments that health claims were made in violation of the FDA’s fortification policy or "Jelly Bean Rule" and that the product name misleadingly references only two of vitaminwater’s ingredients, but omits the presence of a key, unnamed ingredient (sugar), were not preempted.
Further, the Court determined that most plaintiffs met the minimum pleading standards under each states’ laws in question. The Court was unpersuaded by Defendants’ position that placing the sugar content on the drink’s label made consumer confusion relating to the health of VitaminWater unreasonable: “a nutritional panel, though relevant, does not as a matter of law extinguish the possibility that reasonable consumers could be mislead. . . .” The Court was equally unpersuaded by Defendant’s position that slogans such as “vitamins + water = all you need” and sayings like “healthy as a horse” constituted puffery such that “no consumer could reasonably be misled into thinking VitaminWater was a healthy beverage. . . .” (It has also earned VitaminWater a bit of mocking in the popular press which can sometimes be a problem with a puffery defense.)
The outcome of the case remains to be seen. However, the Court’s decision clearly raises a warning flag in terms of relying solely upon the nutrition label to “qualify” any claims that might otherwise be made. However, CSPI’s Litigation director, Steve Gardner, appears to be optimistic and perhaps emboldened to take on new challenges. He said “. . . 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.”
- Randy Shaheen and Jessica Halbert
