A putative class action alleging that Dr. Pepper misled consumers into thinking its Canada Dry Ginger Ale contains real ginger will move forward after a federal court judge in Missouri denied the defendant’s motion to dismiss the suit.
Arnold Webb sued the company, arguing that it violated Missouri state law by engaging in false and misleading business practices regarding the marketing and sale of its ginger ale drinks. Specifically, the defendant labeled, packaged and marketed the drink as “Made from Real Ginger” when laboratory tests concluded that the drink does not contain a detectable amount of ginger, he charged.
The defendant moved to dismiss the suit, but the court sided with the plaintiff.
“[B]ecause Plaintiff alleges independent laboratory testing revealed that the Product does not contain a detectable amount of ginger and a reasonable consumer would be misled into believing that the Product contains at least some detectable amount of ginger, the Court finds the representation ‘Made from Real Ginger’ could be false or misleading to a reasonable consumer,” U.S. District Court Judge Roseann A. Ketchmark wrote.
Particularity requirements were met, as the plaintiff sufficiently presented the “who, what, where, when and how” of his claims with respect to the laboratory testing and the defendant’s advertising campaign, the court said.
For the same reasons, the court also denied the motion with respect to Webb’s claims for breach of express and implied warranty based on the “Made from Real Ginger” claim. The defendant’s statement “is an affirmation of fact that the Product contains ginger,” the court said. “Additionally, Plaintiff alleged that this statement was part of the basis of the bargain to purchase the Product and that the statement is false or misleading because Defendants have failed to provide a Product with at least some detectable amount of ginger.”
Judge Ketchmark even permitted the plaintiff’s claims for injunctive relief to continue, despite a split of authority on the question of whether ongoing harm exists after a plaintiff learns of an alleged deception. While Webb is “aware that the Product allegedly does not contain ginger and has stopped purchasing the Product,” he “would purchase the Product again if the alleged unlawful conduct ceased,” the court said.
To read the order in Webb v. Dr. Pepper Snapple Group Inc., click here.
Why it matters: Given the early stage of litigation, the court was convinced that the plaintiff’s allegations and lab test results were sufficient to move the suit forward, holding that a reasonable consumer might be misled by the “Made from Real Ginger” claim.