Metropolitan News-Enterprise


Wednesday, September 1, 2021


Page 1


Ninth Circuit:

Plaintiffs Lack Standing in Action to Bar Claims Made for Classic Coca-Cola


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed an order granting class certification in a multi-district action seeking injunctive relief in connection with their claim that classic Coca-Cola is mislabeled.

The plaintiffs contend, in particular, that the manufacturer dupes the public by using the advertising slogan:

“No artificial flavors. No preservatives added. Since 1886.”

Terming that a “deceitful catchphrase,” the plaintiffs insist that the original-formula Coke (the only variety under consideration) contains phosphoric acid which, they say, is either an artificial flavor or a preservative. Coca-Cola has acknowledged that “phosphoric acid is a mainstay of the Coke formula, having been used in the beverage for more than a century,” but disputes the plaintiffs’ characterization of it.


Above is a Coca-Cola label, the accuracy of which was challenged in a multi-district action. The NINTH U.S. Circuit Court of Appeals held yesterday that the class plaintiffs lack standing.


Order Reversed

Yesterday’s memorandum opinion reverses an order by District Court Judge Jeffrey S. White of the Northern District of California. White found that six plaintiffs, by virtue of the content of his or her deposition testimony, has standing to represent a class from the person’s state in seeking injunctive relief.

With respect to testimony by Paul Merritt, who originally brought his action in San Diego Superior Court in 2013, White said:

“…Mr. Merritt testified that he has not purchased Coke since he learned about the alleged misrepresentation on the label….Mr. Merritt attests that if Coca-Cola properly labeled Coke,  including ‘disclosing phosphoric acid’s status as an artificial flavor or preservative,’ he would  consider purchasing Coke in the future….The Court concludes that Mr. Merritt has met his burden to show he has standing to seek injunctive relief on behalf of the California class.”

Three-Judge Panel

Disagreeing, Ninth Circuit Judges Bridget Shelton Bade, Marsha S. Berzon, and Morgan Christen said in a memorandum opinion:

“None of the plaintiffs in this case allege a desire to purchase Coke as advertised, that is, free from what they believe to be artificial flavors or preservatives, nor do they allege in any other fashion a concrete, imminent injury. Instead, as Plaintiffs explained in their brief, they have ‘each stated that if Coke were properly labeled, they would consider purchasing it.’ Under governing law, such an abstract interest in compliance with labeling requirements is insufficient, standing alone, to establish Article III standing….Moreover, the imminent injury requirement is not met by alleging that the  plaintiffs would consider purchasing Coke.”

White dismissed various claims other than those seeking injunctive relief.

The case is Engurasoff v. Coca-Cola Refreshments USA, 20-15742.

The Coca-Cola companies also add small amounts of phosphoric acid to Diet Coke, CocaCola Zero Sugar, and Dr Pepper. It is used to add tartness.

Coca-Cola originally contained cocaine. In 1903, the manufacturer began extracting the substance, which was naturally present, but its techniques were not wholly successful until 1929.


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