A California federal court judge rejected both puffery and preemption arguments when it denied Dr. Pepper Snapple Group’s motion to dismiss a putative class action challenging the labeling for its Canada Dry Ginger Ale.
A pair of plaintiffs filed suit, alleging that the defendant tricked consumers by promoting its Canada Dry Ginger Ale as containing actual ginger root, which they purchased for its well-known health benefits. Cans of the beverage stated that it was “Made From Real Ginger,” the Canada Dry website featured the statement “Made From Real Ginger” on its front page, and commercials for the drinks depicted “Jack’s Ginger Farm.”
In one ad, a worker harvesting ginger pulls up a plant and finds a bottle of Canada Dry Ginger Ale where the ginger root would be, with a voice-over narrating, “Find your way to relaxation with the crisp, soothing taste of real ginger and bubbles.” In a second, the farmer pulls up the root only to find an attractive woman, who becomes his new love interest, while the voice-over states, “For refreshingly real ginger taste, grab a Canada Dry Ginger Ale. Real ginger, real taste,” as the words “real ginger” appear on the screen.
Dr. Pepper moved to dismiss, arguing that the commercials were puffery and that the claims in the lawsuit were preempted by the Food, Drug and Cosmetic Act.
The imagery in the commercials would by itself constitute inactionable puffery, U.S. Magistrate Judge Nathanael M. Cousins acknowledged. But there was more to the commercials.
The voice-over, “when combined with (1) the ‘Jack’s Ginger Farm’ sign, (2) the field that appears to be growing ginger, and (3) the words that appear on the screen at the end of the commercial, lead the Court to conclude that the commercial cannot simply be considered puffery,” the judge wrote.
“These factors could lead a reasonable consumer to believe that Canada Dry Ginger Ale contains ginger root. The question is not whether a reasonable and ‘minimally competent’ human being would think cans of Canada Dry grow from fake ginger plants on Jack’s fictional Ginger Farm. Obviously not. The question is whether the commercials lead reasonable consumers to believe Canada Dry contains ginger root. Whether a drink does or does not contain ginger root is not a vague or subjective question; it is a clear fact-based question. Either the drink contains ginger root, or it does not.”
As for the preemption argument, the court distinguished the claims made by the plaintiffs, which challenged the ingredients in the product, from preempted claims based on the flavor of a product.
“The Canada Dry Nutrition Facts label states that the ginger ale contains ‘natural flavors,’ and the plaintiffs have never argued anything to the contrary,” Judge Cousins wrote. “The plaintiffs do not object to the information on the Nutrition Facts label. The plaintiffs do take issue with the statement on the front of the can: ‘Made From Real Ginger.’ This is a dispute about the ingredients in the can, not the flavor.”
To read the order in Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., click here.
Why it matters: The court permitted the action to move forward, finding the challenged commercials did not constitute inactionable puffery when considered as a whole and that the preemption argument failed because the lawsuit was based on the ingredients of the Ginger Ale, not the flavor or its labeling as “natural.”