9th Circuit: desire to purchase properly labeled product is too abstract for injunctive relief standing

In re Coca-Cola Products Marketing & Sales Practices
Litig. (No. II), 2021 WL 3878654, No. 20-15742 (9th Cir. Aug. 31,
2021)

The Ninth Circuit limits its injunctive relief standing
jurisprudence in light of TransUnion.

The district court certified a class in a multidistrict
consumer action alleging mislabeling of Coke as having “no artificial flavors.
no preservatives added. since 1886” even though Coke contains phosphoric acid,
and allowed it to pursue injunctive relief.

Under previous circuit precedent, “a previously deceived
consumer may have standing to seek an injunction against false advertising or
labeling, even though the consumer now knows or suspects that the advertising
was false at the time of the original purchase, because the consumer may suffer
an ‘actual and imminent, not conjectural or hypothetical’ threat of future
harm.” The two examples: (1) “she will be unable to rely on the product’s
advertising or labeling in the future, and so will not purchase the product
although she would like to” and (2) “she might purchase the product in the
future, despite the fact it was once marred by false advertising or labeling,
as she may reasonably, but incorrectly, assume the product was improved.”

Here, however, none of the plaintiffs alleged a desire to
“purchase Coke as advertised, that is, free from what they believe to be
artificial flavors or preservatives.” Instead, they alleged that “if Coke were
properly labeled, they would consider purchasing it.” But “such an abstract
interest in compliance with labeling requirements is insufficient, standing
alone, to establish Article III standing,” and merely considering a purchase
isn’t an imminent injury.

Two named plaintiffs specifically “explained that they were
not concerned with phosphoric acid, but rather with whether Coca-Cola was
telling the truth on its product’s labels. Both asserted that they would be
interested in purchasing Coke again if its labels were accurate, regardless of
whether it contained chemical preservatives or artificial flavors.” But that
was no more than alleging “a bare procedural violation,” which isn’t enough for
standing.  As a case quoted by TransUnion
said, “[a]n ‘asserted informational injury that causes no adverse effects
cannot satisfy Article III.’ ” Thus, plaintiffs’ “desire for Coca-Cola to
truthfully label its products, without more, is insufficient to demonstrate
that they have suffered any particularized adverse effects.”

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