Getting to the Root of the Problem

By Mindy Abern

We all know that food and beverage companies cannot expressly lie to consumers about the ingredients in their products. But what about implying that a certain ingredient is included in the product; one that is known to have some health benefits? In a recent class action lawsuit alleging that Dr. Pepper Snapple Group Inc. falsely advertised that Canada Dry ginger ale contains actual ginger root, the United States District Court for the Northern District of California permitted the lawsuit to proceed by denying Dr. Pepper’s motion to dismiss. In Jackie Fitzhenry-Russell et al,[1], plaintiffs claimed that they were the victims of fraud by relying upon the phrase “Made From Real Ginger” on cans of Canada Dry, in addition to its advertising making similar statements and visual implications. Whether Canada Dry actually contains ginger root is important because, according to plaintiffs, a reason they bought and drank Canada Dry was the well-known health benefits of consuming ginger root.

In permitting the lawsuit to proceed, the court held that the false advertisement claim satisfied the five-prong “who, what, when, where, and how” test used in Vess v. Ciba-Geigy Corp.[2]. The court reasoned that the plaintiffs’ fraud allegations were sufficient to satisfy Civil Procedure Rule 9(b) [pleading fraud or mistake] by reasoning the “who” is Dr. Pepper, the “what” is the four commercials featuring “Jack’s Ginger Farm,” the “when” is over the last five years, the “where” is throughout the United States, and the “how” is that the statements and representations made in the commercials suggested that Canada Dry Ginger Ale contained ginger root.

In these commercials for Canada Dry Ginger Ale, a farmer is depicted harvesting ginger, but when he pulls one of the plants by its stalk, he finds a bottle of Canada Dry instead of the expected ginger root. The commercials include voice-overs that state, “Find your way to relaxation with the crisp soothing taste of real ginger and bubbles. Canada Dry. The root of relaxation” and “Real Ginger, Real Taste”. The words “real ginger” also appear on the screen.

In this case, the court held that these voiceovers, the “Jack’s Ginger Farm” sign, the field that appears to be growing ginger, and the commercial concluding tagline, went beyond what would be considered simple puffery. The court reasoned that the combination of these factors could lead a reasonable consumer to believe that Canada Dry Ginger Ale actually contains ginger root.

Legally speaking, while food and beverage labels must be truthful and non-misleading, what is considered truthful and non-misleading often falls in a gray area. For example, although the claim "made with real fruit" can be found on dozens of products found up and down the aisles of a grocery store, in making this claim, many advertisers do not distinguish between a product that includes a splash of juice concentrate and a product in which fruit is the primary ingredient.

An important takeaway is that advertisers are held to the same standard for both express claims made, and implied claims inferred by consumer. It is a reasonable consumer’s impression of the claim (and not necessarily what an advertiser intended to convey) which dictates whether or not a claim made is truthful and nonmisleading. Accordingly, when formulating an advertisement or product label, advertisers should carefully consider: the meaning of the terminology used, the context in which the terminology appears, and the data the advertiser has on file to support that claim.

[1]Jackie Fitzhenry-Russell et al. v. Dr Pepper Snapple Group Inc. et al, Case 5:17-cv-00564 (ADD DATE)

[2]Vess v. Ciba-Geigy Corp, USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)