The Center for Science in the Public Interest (CSPI) has filed a putative nationwide class action in a federal court in California against Dr. Pepper Snapple Group, Inc., alleging that the company misleads consumers, through marketing and product labeling, to believe that the antioxidants contained in its beverages are derived from fruits and that the company’s use of antioxidants in soft drinks violates contrary Food and Drug Administration (FDA) regulations. Green v. Dr. Pepper Snapple Group, Inc., No. n/a (U.S. Dist. Ct., C.D. Cal., filed November 8, 2012).

By using the term “antioxidant” in the names of some of its beverages, the company allegedly distinguishes its products “from similar soft drinks and, thereby, command[s] a premium price for the Products.” According to the complaint, “Contrary to Defendant’s claims and representations, the Products do not contain any real cherries, real berries, or even extracts from those fruits. Nor do the Products derive their antioxidant content from real, antioxidantrich cherries; real, antioxidant-rich raspberries, blackberries, and cranberries; or real, anti-oxidant-rich pomegranates. Unbeknownst to the average consumer, the Products contain only one antioxidant—vitamin E.”

The complaint also alleges that not only is the amount of vitamin E in the products minimal and thus unable to confer any health benefits, but the products also contain high-fructose corn syrup, artificial sweeteners and food coloring (Red 40) that carry their own purported health risks. The named plaintiff, a California resident, claims that he would not have purchased the products had he known the facts about their antioxidant content.

The complaint further alleges that “Defendant’s fortification of the Products with chemical additives is in direct violation of the FDA’s Fortification Policy. 21 C.F.R. § 104.20 (the ‘Fortification Policy’).” This policy states that FDA “does not encourage indiscriminate addition of nutrients to foods, nor does it consider it appropriate to fortify . . . snack foods such as . . . carbonated beverages.” FDA purportedly maintains that is policy has the force of law although it is only a guideline. And, according to the complaint, a federal court in New York found that while the policy “is itself non-binding . . ., [it] is incorporated by reference into binding FDA regulations.” The agency has apparently issued warning letters to the defendant and other companies “for similar violations of its Fortification Policy.”

Alleging violations of the Consumers Legal Remedies Act, California Business and Professions Code (unlawful and fraudulent business acts and practices, misleading and deceptive advertising) and unjust enrichment, the plaintiff seeks restitution; disgorgement; injunctive relief; compensatory, incidental, consequential, statutory, and punitive damages; interest; attorney’s fees; and costs.

CSPI Executive Director Michael Jacobson said, “Non-diet varieties of 7UP, like other sugary drinks, promote obesity, diabetes, tooth decay, and other serious health problems, and no amount of antioxidants could begin to reduce those risks. Adding an antioxidant to a soda is like adding menthol to a cigarette— neither does anything to make an unhealthy product healthy.” CSPI claims to have communicated its concerns about antioxidants in the company’s soft drinks in May 2012, “but the company has since refused to correct its labels.” See CSPI News Release, November 8, 2012.