Posted by Linda Bonvie
November 15, 2012
In what appears to be yet another case of food identity theft, a certain company has been accused of stealing the identity of cherries, mixed berries and pomegranates in producing soft drinks that don’t contain so much as a smidgen of any of these fruits.
The soft drink at issue is an old familiar one – 7UP – and the company, the Dr. Pepper Snapple Group, has become the latest big food conglomerate to face a legal challenge over phony marketing language used to describe its products. Just last week, we reported that the J.M. Smucker Company was also being hauled into court to defend what plaintiffs allege are misrepresentations regarding the healthfulness of two of its products, the relatively new Uncrustables, ready-made frozen peanut butter and jelly sandwiches, and century-old Crisco vegetable shortening.
“There’s never been a more delicious way to cherry pick your antioxidant!” claims the website for 7UP Cherry Antioxidant. “With all-natural cherry flavors, 7UP Cherry Antioxidant is the perfect pick me up.” But such hype was instead picked up as false and misleading by a Sherman Oaks, California consumer, David Green, who chose to sue 7UP in U.S. District Court over it, maintaining that he purchased the drinks based on depictions of the colorful fruits on the labels, which he assumed were the source of the advertised antioxidants. Instead, he discovered that the only “antioxidant” in the beverage was a small amount of added vitamin E. The other ‘not-nutritious’ ingredients are high-fructose corn syrup, citric acid, potassium benzoate and Red Dye 40. with Blue Dye 1 added to the Mixed Berry and Pomegranate varieties.
“Adding an antioxidant to a soda is like adding menthol to a cigarette – neither does anything to make an unhealthy product healthy,” noted Michael F. Jacobson, executive director of the nonprofit Center for Science in the Public Interest, which is bringing the suit on Green’s behalf with the consumer-protection class- action law firm Reese Richman LLP.
We attempted to contact the media office of the Dr, Pepper Snapple Group to find out how they justified making such claims but were unsuccessful in reaching anyone, being repeatedly told the “mailbox is full” and then being rerouted back to the same repetitive message. As we reported last week, however, Smucker’s has been quoted as calling the actions filed against it “wasteful, expensive and time-consuming litigation that cannot and will not benefit the public.”
But we think it is well worth all that time and expense that litigation of this sort is costing companies, because it can and will benefit the public. Every time news of such lawsuits becomes publicized, it can only serve to reinforce the realization that there is nothing beneficial about products such as soft drinks laced with high fructose corn syrup, or pseudo-sandwiches filled with artery-clogging trans fats and HFCS.
If any of these cases do proceed to court, there is also the possibility that litigation will lead to either better enforcement of existing law or changes in laws and regulations designed to protect the public from deliberate misrepresentations or unsafe and unhealthy products and practices. For example, in the latest lawsuit, the plaintiffs have alleged that the product formulation being used is actually illegal, since “the FDA has a policy that states that the agency ‘does not consider it appropriate to fortify…snack foods such as candies and carbonated beverages’ and … (has) sent a warning letter to Coca-Cola for similar violations of that policy.” They also charge that “the antioxidant claims violate several California laws,” including its Consumers Legal Remedies Act, the Sherman Food, Drug, and Cosmetics Law, and provisions of its Business and Professions Code related to fraudulent business practices and misleading advertising.
But the laws and regulations are only as good as society’s willingness to enforce them and the awareness that they are being ignored or violated. And, in this particular case, to invoke a decades-old advertising slogan, it well might be that “nothing does it like 7UP.”