Were Consumers Misled by Vitaminwater's Health Claims?
The internet is ablaze with reports that Coca-Cola lawyers have claimed that "no consumer could reasonably be misled into thinking Vitaminwater was a healthy beverage."
The quote comes from a 55-page court order that summarizes arguments in a lawsuit in which three California residents and others allege they were misled by Coca-Cola's health claims about the drink.
However, court records and the transcript of a key hearing show that Coca-Cola's arguments were a bit more subtle.
The Center for Science in the Public Interest filed the lawsuit, alleging that Coca-Cola is particularly deceptive in suggesting that the drink can cure disease. The Washington, D.C.-based nonprofit group is also targeting Coca-Cola for emphasizing the vitamin content and downplaying the sugar content in the drinks.
Bestselling author John Robbins wrote an article called the “Dark Side of Vitamin Water” for the Huffington Post, saying the company has accomplished a "staggering feat of twisted logic." It says Coca-Cola’s lawyers “are defending the lawsuit by asserting that ‘no consumer could reasonably be misled into thinking Vitaminwater was a healthy beverage.’”
The article had more than 700,000 views and 1,200 comments, according to the Web site's statistics.
A columnist/blogger for the Medpagetoday.com Web site repeated the HuffPo columnist, re-asserting the Coca-Cola lawyer’s purported claim. “Wait, what? Are they kidding?” the article says.
I wondered the same thing, and turned to the court record. It seems that instead of claiming that no customer is silly enough to think this stuff is healthy, Coca-Cola seemed to be saying that people are smart enough to have a realistic notion what the drink is and is not.
Coca-Cola lawyers call some of their own claims about Vitaminwater “puffery,” such as calling one of the drinks "rescue." They describe some of the other text on the bottles as further examples of advertising rhetoric associated with the drinks.
“No reasonable consumer could possibly believe that vitamins and water are ‘all you need,’ or that it is ‘all in your hand,’ especially when holding a bottle that has nutrition facts on it,” Coca-Cola's attorney wrote in a motion to dismiss the case.
James Eiszner, a Kansas City attorney arguing for Coca-Cola, also broached the topic during oral arguments before a district court in Brooklyn in February, arguing that consumers could tell at the first sip that the drink contained sugar.
I think common sense tells me – I hope it tells you that anything that's packed or loaded with sugar, as the plaintiffs allege here, you can taste the presence of sugar. I think, Your Honor, it's also common sense that water isn't sweet. Vitamins are not sweet. Sugar is sweet. So if you taste the product, you can taste sweetness and you're put on notice of the presence of something that is sweetening the product … Common sense, if you're going to complain about sugar, you don't keep buying the product over and over and over again.
The judge, though, summarized the argument in an order: "At oral argument, defendants suggested that no consumer could reasonably be misled into thinking Vitaminwater was a healthy beverage or was composed only of vitamins and water, because the sweet taste of Vitaminwater puts consumers on notice that the product contains sugar."
Stephen Gardner, a Dallas-based attorney for CSPI, could not point to a court record where Coca-Cola claims precisely that no reasonable person would think Vitaminwater is healthy. Still, he said the characterization is fair.
And the bottom line is that "what Coke’s saying to the court and what it's saying to the public are two different things," Gardner said.
The judge denied Coca-Cola’s motion to dismiss the case on most counts, meaning arguments will continue.
Attorneys for the plaintiffs face the next hurdle of certifying their "class" for a class-action lawsuit. California plaintiffs include Ruslun Antonov, James Koh and Jerrad Pelkey, all of whom bought the water and say they were deceived by its health claims.
As an interesting postscript, it's worth noting that health attorney and blogger Michele Simon reached out to Huffington Post writer John Robbins, asking him to reflect on the article's success. Robbins is open about his contempt for the company:
I am grateful to the 35,000 or so people who have posted the article I wrote about the dark side of Vitaminwater to their Facebook pages and/or tweeted about it. Coca-Cola would like us to believe that it’s a responsible corporate citizen, but the truth is decidedly otherwise. In fact, the company constantly lies to the public. What’s even more insulting, Coke then has the audacity to turn around and say, in court, that a product they have marketed as healthy actually isn’t, and the public would have to be stupid to think otherwise.
You can read the oral argument in the case here: