OJ may be guilty … of adding ingredients without disclosure

In re: Simply Orange Orange Juice Marketing & Sales
Practices Litig., MDL No. 2361, 2017 WL 3142095 (W.D. Mo. Jul. 24, 2017)
Plaintiffs alleged that Coca-Cola sold Simply Orange, Minute
Maid Pure Squeezed, and Minute Maid Pure Premium without disclosing its use of
added flavors in these products, as required by federal labeling regulations,
leading consumers in seven states to pay a price premium. Coca-Cola argued that
it didn’t add flavoring in need of disclosure, because the “add-backs” it uses
are 100% made-from-the-orange products.  Also, Simply Orange and Minute Maid Pure
Squeezed don’t consistently use add-backs year round, meaning that there was no
injury/standing. Further, Coca-Cola maintained that only 1 in 25 consumers care
about the add backs, according to its survey expert, and therefore plaintiffs couldn’t
demonstrate reliance on a class-wide basis.  The court partially certified the proposed
class.
The first hint of what will happen comes from the court’s
characterization of Coca-Cola’s standing argument: “that its own inconsistent
and un-labelled use of add-backs means that certain consumers purchased orange
juice not containing add-backs, and those consumers were not injured.”  First, every container of Minute Maid Premium
had add-backs, and thus those consumers had standing.  Second, the existing discovery suggested that
approximately 70 percent of the time, purchasers of Simply Orange and MMPS
would be receiving drinks that included add-back; for certain years, nearly
every container sold included add-back. The plaintiffs alleged that they were regular
purchasers of juice throughout the year, and thus “undoubtedly purchased juice
containing add-backs.”  That was enough
to show standing, as required by Spokeo
v. Robins
, for the named plaintiffs who represented the class.
Ascertainability: the court was concerned about the privacy
implications of getting purchaser information from merchants/customer loyalty
cards, but the proposed class included all purchasers of the specified products
under each state’s laws. 
Self-identification would work, given that the odds were that most class
members had purchased an orange juice product containing add-back. “[I]n
low-value consumer goods cases, there may be no better means of identifying
members of a class in circumstances such as these.” If unrebutted consumer
testimony “would be sufficient to establish injury in an individual suit, it
follows that similar testimony in the form of an affidavit or declaration would
be sufficient in a class action.” In re Nexium Antitrust Litig., 777 F.3d 9, 20
(1st Cir. 2015).
  
Commonality: the court was concerned about whether
plaintiffs will be able to provide common proof as to reliance, materiality,
and/or causation, but several of plaintiffs’ issues were susceptible to common
proof: whether the orange juice products contain added flavors not permitted by
federal law; whether the orange juice products omit disclosure of added flavors
as required by federal labeling laws; whether the orange juice products
conformed to the representations on the labels of the products; whether the
orange juice products omitted material information from the products’ labels;
whether defendant warranted that the orange juice products would conform to the
label representations; and whether defendant breached these warranties.  The predominance requirement was likewise
satisfied with respect to some elements of the state law claims, but not
others, particularly requirements to prove reliance, materiality, and/or
causation, as well as damages. 
(Plaintiffs’ proposed damages model was based on a flawed survey that
measured consumers preference for juice with “added flavoring,” vs. no “added
flavoring,” with wording that suggested inferiority, even though current FDA
regulations allow some amount of added flavoring.)  An issues class was therefore appropriate.

However, plaintiffs lacked standing to pursue injunctive
relief.

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