On August 31, 2021, the Ninth Circuit vacated a district court’s certification of a class of consumers who alleged mislabeling claims against The Coca-Cola Company (“TCCC”), holding that the consumers lacked standing to pursue injunctive relief because they had not shown a likelihood of future harm.

• The plaintiffs alleged that TCCC misled the public by advertising its soft drink of the same name with the slogan: “no artificial flavors. no preservatives added. since 1886.” According to the plaintiffs, that slogan was misleading because Coke contains phosphoric acid, which is a chemical preservative or artificial flavor. The district court denied the plaintiffs’ motion for class certification with respect to their various common law claims (such as breach of warranty and unjust enrichment). But the plaintiffs also asserted statutory consumer protection claims under the laws of California, Illinois, New York, New Jersey, Massachusetts, and Florida. The district court certified classes under the laws of those states and found that the named plaintiffs had standing to seek injunctive relief. TCCC appealed.
• The Ninth Circuit vacated the district court’s certification order. It did not address any of the Rule 23 requirements for certification because it held that the named plaintiffs did not have standing to pursue their mislabeling claims.
• Under Ninth Circuit precedent, a “previously deceived consumer” can have standing to seek injunctive relief against false advertising or labeling, “even though the consumer now knows or suspects that the advertising was false,” if the consumer suffers an actual and imminent threat of future harm. Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018). Davidson “offered two-nonexclusive examples” of imminent future harm: (1) the consumer cannot rely on the product’s labeling in the future, and therefore will not purchase the product even though she would like to and (2) the consumer might purchase the product in the future even though it was mislabeled, as she may reasonably but incorrectly assume that the product was improved. For example, in Davidson the court found that the plaintiff had standing to claim that the defendant falsely labeled its wipes as “flushable” because she desired to purchase the product as advertised but could not rely on the validity of the defendant’s advertising. The Davidson court found that this alleged informational injury was sufficiently concrete.
• In contrast to the Davidson plaintiff, the Ninth Circuit explained that 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, nor [did] they allege in any other fashion a concrete, imminent injury”:
  • One plaintiff testified that she had not stopped drinking Coke and never specified whether she would want to purchase Coke in the future.
  • Four plaintiffs said that they “would consider purchasing” Coke depending on several factors (such as the removal of phosphoric acid), but such allegations of possible injury were not enough to establish standing.
  • The remaining two plaintiffs explained that they were not concerned with phosphoric acid, but rather with whether TCCC “was telling the truth on its product’s labels.” They asserted that they would be willing to purchase Coke again if the labeling information were accurate (regardless of its chemical composition). The court relied on the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), to hold that a bare informational injury that caused no adverse effects was not enough to establish standing.
• In the wake of Davidson—which held that a plaintiff’s knowledge of the “truth” of an allegedly false advertisement does not necessarily foreclose injunctive relief standing—many commentators simply assumed that class action plaintiffs could easily demonstrate a likelihood of future harm so long as they followed the blueprint laid out in that opinion. Yet, the recent decision in In re: Coca-Cola shows that injunctive relief standing challenges are hardly a dead-letter in the Ninth Circuit. And it further underscores the importance of closely analyzing the plaintiffs’ injury allegations, particularly through named plaintiff depositions, to test whether they have adequately asserted a cognizable injury under the consumer-protection laws in question.
• The case is In re: Coca-Cola Products Marketing and Sales Practices Litigation (No. II), and you can read more here.