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What Coca-Cola Can and Cannot Say

A lawsuit filed against The Coca-Cola Co. serves as yet another warning for food and beverage companies that they shouldn't make health claims that aren't clearly backed up by science, experts say.

Coca Cola Headquarters, Atlanta Ga. (Photo by John Disney/Daily Report.)

A lawsuit filed against The Coca-Cola Co. serves as yet another warning for food and beverage companies that they shouldn't make health claims that aren't clearly backed up by science, experts say.

The Center for Science in the Public Interest, a consumer advocacy group based in Washington, D.C., sued Coca-Cola and the trade association American Beverage Association on Jan. 4, alleging they downplayed the risks associated with its soda products. The case is being heard in the U.S. district court in Oakland, California.

CSPI alleges Coca-Cola "represented falsely that sugar-sweetened beverages are not linked to obesity, diabetes and cardiovascular disease." The group also accuses the soda giant of funding expensive initiatives that encourage customers to exercise to burn off the calories from their beverages. CSPI points to the "Be OK" ad campaign that states: "A 12 oz. can of Coke = 140 calories. There are many ways to burn those calories through EXTRA physical activity and have fun while doing so."

CSPI is known for suing companies that overstate the nutritional benefits of their product or understate the risks associated with their potentially harmful ingredients, advertising attorneys say.

Coca-Cola issued a statement calling the case meritless. "We take our consumers and their health very seriously and have been on a journey to become a more credible and helpful partner in helping consumers manage their sugar consumption," the company said. It noted that it has taken efforts to expand low- and no-calorie products, added smaller-sized drinks to its lineup, and reformulated its drinks to reduce added sugars. Coca-Cola notes it discloses its funding of health and well-being scientific research, and that it does not advertise to children under the age of 12.

Jason Howell, a partner at Perkins Coie in Seattle, says there is a lesson here for in-house attorneys, particularly those working at food and beverage companies. "These types of cases are always a good general reminder for in-house counsel," he says. "Whenever you're vetting advertising and marketing materials, be careful to scrub the content to make sure the company is not making false, misleading or unsupported messages, especially for health-related claims."

Howell notes this type of suit is common in the Northern District of California, which has become known as "food court" because the state is consumer-friendly and has seen an uptick of food-related cases in recent years. But he's uncertain if regulators will show an interest in the case against Coca-Cola. "I think the FTC is generally watchful of and concerned about health claims. This could catch their eye. But, particularly under the Trump administration, the FTC might choose to focus their enforcement efforts elsewhere," Howell says.

He notes that this applies to nontraditional advertising such as a FAQ page on a website, or in Coca-Cola's case, it has a page dedicated to addressing rumors about its products. "When content is published on a commercial entity's FAQ or 'rumor response' web pages to promote its products, the content should be vetted, just like with other advertising," he says.

Interestingly, Coca-Cola does address specific health claims on its website. (These claims are not mentioned in the CSPI lawsuit). The company supplies responses to "rumors" about its products, including one that says: "Soft drinks cause kidney failure." The company's response, in part, is: "None of our beverages contain harmful substances. All our soft drinks are wholesome beverages manufactured in compliance with the laws of nearly 200 countries."

Attorney David Mallen with Loeb & Loeb says it's natural for Coca Cola to "have to correct the record" for the public but it's a "balancing act" when it comes to defending its product. "They have to be careful to point to the evidence or point to research if they're pointing to third-party information that addresses whether its sweeteners are linked to kidney failure or if aspartame has links to cancer," he says.

On the other hand, Coca-Cola's lawyers surely realize they can't outright tout the health benefits of Coca-Cola. "They're not going to say something like, 'It's good for you.'" But the question in court for the CSPI lawsuit will be: "When they talk about balance, are they suggesting this is good for you even if they're not expressly saying it?"

Mallen says it isn't clear yet how successful CSPI will be in court. But regardless of CSPI's fate in court, the organization has already succeeded in getting its message out to consumers. "They're very savvy," Mallen says. "This kind of lawsuit has the effect of raising issues of public opinion, which can matter just as much for a brand such as Coca-Cola."

Originally published on Corporate Counsel. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Stephanie Forshee

Stephanie Forshee is a writer for Inside Counsel magazine. Previously, she has worked for the Puget Sound Business Journal, the San Fernando Valley Business Journal and Auto...

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