In re Coca-Cola Prods. Mktg. & Sales Practices Litig.

Opinion

AMENDED ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION FOR CLASS CERTIFICATION AND SETTING CASE MANAGEMENT CONFERENCE

Re: Dkt. No. 160

Now before the Court for consideration is the motion for class certification filed by George Engurasoff ("Mr. Engurasoff"), Paul Merritt ("Mr. Merritt"), Joshua Ogden ("Mr. Ogden"), Ronald Sowizrol ("Mr. Sowizrol"), Michelle Marino ("Ms. Marino"), Yocheved Lazaroff ("Ms. Lazaroff"), Rachel Dube ("Ms. Dube"), and Thomas Woods ("Mr. Woods") (collectively "Plaintiffs"). The Court has considered the parties' papers, relevant legal authority, and the record in this case, and it HEREBY GRANTS, IN PART, AND DENIES, IN PART, Plaintiffs' motion.¹

BACKGROUND

Plaintiffs in this multi-district litigation allege that Defendants, The Coca-Cola Company, Coca-Cola Refreshments U.S.A., Inc., BCI Coca-Cola [*6]  Bottling Company of Los Angeles, and Coca-Cola Bottling Company of Sonora, California, Inc. (collectively "Coca-Cola"), affirmatively, and by material omissions, misled the public by representing on Coke's labels that Coke is, and always has been, free of artificial flavors and chemical preservatives.²

Coca-Cola lists phosphoric acid in the ingredients list on Coke's labels. However, Plaintiffs allege Coca-Cola omitted the fact that phosphoric acid is used as, an artificial flavoring and chemical preservative (the "Ingredients List Claim"). (Dkt. No. 79, Consolidated Complaint ("Consol. Compl.") ¶¶ 62-107; Dkt. No. 26, Marino Amended Class Action Complaint ("Marino AC") ¶¶ 56-108, 114-116; Sowizrol v. Coca-Cola Company, 14-CV-3774, Dkt. No. 53, First Amended Complaint ("Sowizrol FAC") ¶¶ 51-99, 103-105; Lazaroff v. Coca-Cola Company, 14-cv-3686-JSW, Dkt. No. 27, Amended Complaint ("Lazaroff AC") ¶¶ 54-103, 107-109.)³ Plaintiffs also allege that by failing to identify phosphoric acid as an artificial flavor and a preservative, Coca-Cola violated federal and state laws relating to information that must be included on food labels. (Consol. Compl. ¶¶ 21-30; Marino AC ¶¶ 21-33; Sowizrol FAC [*7]  ¶¶ 21-30; Lazaroff AC ¶¶ 21-30.)

Plaintiffs also allege the phrase "no artificial flavors. no preservatives added. since 1886.", which appears on some Coke labels, is an affirmative misrepresentation because phosphoric acid is a preservative and an artificial flavor (the "Pemberton Claim"). (See, e.g., Consol. Compl. ¶¶ 14-15, 25; Marino AC ¶¶ 14-15, 25, 54-56; Sowizrol FAC ¶¶ 14-15, 48-49; Lazaroff AC ¶¶ 14-15, 52-54.) Finally, Plaintiffs allege the phrase "original formula" is an affirmative misrepresentation. According to Plaintiffs, "the composition of Coca-Cola has repeatedly changed over time." Those changes include "the addition of artificial ingredients like phosphoric acid." (Consol. Compl. ¶ 16; Marino AC ¶ 16, 55, 135; Sowizrol FAC ¶ 16, 49, 123; Lazaroff AC ¶ 16, 53, 127.)

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