A lawsuit filed this month in Massachusetts contends that Coca Cola’s claims that Coke is a natural and healthy drink has been fuelled by “false and deceptive representations . . free of artificial flavoring and chemical preservatives.”
“Faced with clear evidence that it was losing market share because consumers increasingly preferred beverages without artificial flavoring and chemical preservatives, The Coca-Cola Company, owner of the brand, responded, not by providing consumers with what they wanted – a natural and healthy drink – but by deceiving them into thinking that Coca-Cola was natural and healthy when, in fact, it contained artificial flavoring and chemical preservatives,” the lawsuit contends.
The nine lawyers representing the plaintiffs in the case are asking the court to grant the lawsuit class-action status. If granted by the court, it would represent all consumers in Massachusetts who bought Coca-Cola since Aug. 1, 2010, a number potentially in the millions.
Coca Cola has been facing more lawsuits of late, including one currently being fought in the US Supreme Court regarding is pomegranate-flavoured drink. Another major legal battle is challenging the company’s advertising for its Simply Orange orange juice.
Among the lawsuit’s claims:
Defendants’ concerted efforts to employ false and deceptive labeling practices to
mislead consumers into thinking Coca-Cola is natural and healthy, when in fact it is neither, did
not occur by accident. Rather, it was a response to changing consumer preferences, which were
causing Coca-Cola, as well as other carbonated soft drinks, to lose market share.
7. By 2008, Defendants realized they had a significant problem. Sales of carbonated
sodas were precipitously dropping and reached their lowest levels since 1997. See Jessica Wohl,
U.S. Soft-Drink Volume Decline Steepest in Decades, Reuters, Mar. 30, 2009.
8. Worse still, consumers were not only buying and drinking less soda, they were
switching to other beverages entirely. Studies showed that because soda was associated with
empty calories and artificial ingredients, consumers were fundamentally changing their drinking
habits. One leading study showed that, between 2003 and 2008, the regular carbonated soft
drink market lost 15.6 million adult drinkers. Marketing research showed that consumers were
increasingly interested in all natural foods that did not contain chemical preservatives or artificial
flavors. See Classic Soft Drinks Fall Out of Favor, Mar. 30, 2009 (available at
9. These developments were a major concern for Defendants because their beverage
business, and their flagship Coca-Cola brand, contained chemical preservatives and artificial
10. Defendants were aware that sales were declining because, as established by
consumer surveys, an overwhelming majority of consumers correctly and accurately perceived
their products to be unnatural, artificial and chemically preserved. This critical fact was
compounded as competitors like Pepsi and Red Bull began introducing new cola products that
were being touted as “all natural” or “100% natural,” and which lacked certain artificial
ingredients, like the phosphoric acid that Defendants used to artificially flavor and chemically
preserve their Coca-Cola products.
11. The situation so substantially affected Defendants that The Coca-Cola Company’s
Chief Marketing and Commercial Officer referred to these changes in consumer preferences as a
“category five” hurricane that was “really bearing down on us.” See FD (Fair Disclosure) Wire,
The Coca Cola Company Analyst Meeting Day 1, Nov. 16, 2009. He went on to note that: “That
is not a fad. Consumers who classify themselves as LOHAS [Lifestyles of Health and
Sustainability] or those who value natural ingredients represent in some markets 35% of the total
The Pemberton Campaign
12. Rather than reformulate Coca-Cola and their other soft drinks to appeal to these
changing consumer preferences for natural and healthy beverages, Defendants adopted a global
campaign of disinformation, false advertising, false labeling and misbranding that was dubbed
“Pemberton” after the pharmacist who invented Coca-Cola. This campaign was designed to fool
consumers into the erroneous belief that their products were not artificially flavored or
chemically preserved. In so doing, they not only misled and deceived consumers but, as
described below, broke a number of federal and state food labeling laws designed to protect
consumers from such illegal and deceptive practices.
13. The main goal of the Pemberton campaign was, as admitted at the time by the
Global Brand Director of Coca-Cola, to falsely represent to consumers that Coca-Cola never had,
and never would, add chemical preservatives or artificial flavorings. “‘Pemberton’ is more fact-
based, affirming for consumers that Coca-Cola never has had, and never will have, added
preservatives or artificial flavors.” See Coke Campaign Focuses on What’s Not in the Can; ‘No
Added Preservatives or Artificial Flavors,’ New York Times, Aug. 6, 2008.
14. As part of the campaign, Defendants placed false statements on product labels on,
for example, two-liter bottles and 12-pack and 24-pack cartons of cans of Coca-Cola that
affirmatively misrepresented: “no artificial flavors. no preservatives added. since 1886.” This
statement, as well as the entire premise of the Pemberton campaign, was false and misleading.
15. In fact, Coca-Cola contains phosphoric acid. Phosphoric acid is both an artificial
flavoring and a chemical preservative.
16. Also false was the prominent representation on Coca-Cola containers and
advertisements that Coca-Cola is still made with the “original formula” devised by Pemberton in
1886. In fact, the composition of Coca-Cola has repeatedly changed over time.