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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 1 of 42
`
`Keith M. Fleischman
`Bradley F. Silverman
`Joshua D. Glatter
`THE FLEISCHMAN LAW FIRM, PLLC
`565 Fifth Avenue, Seventh Floor
`New York, NY 10017
`(212) 880-9571
`keith@fleischmanlawfirm.com
`bsilverman@fleischmanlawfirm.com
`jglatter@fleischmanlawfirm.com
`
`Don Barrett
`Brian K. Herrington
`BARRETT LAW GROUP, P.A.
`404 Court Square North
`Lexington, MS 39095
`(662) 834-2488
`dbarrett@barrettlawgroup.com
`bherrington@barrettlawgroup.com
`
`Lead Counsel for Plaintiffs
`
`
`
`IN RE: COCA-COLA PRODUCTS
`MARKETING AND SALES PRACTICES
`LITIGATION (NO. II)
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`OAKLAND DIVISION
`
`
`
`Case No. 4:14-md-02555-JSW
`
`CLASS ACTION AND
`REPRESENTATIVE ACTION
`
`AMENDED CONSOLIDATED
`COMPLAINT FOR EQUITABLE AND
`INJUNCTIVE RELIEF
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`THIS DOCUMENT RELATES TO:
`
`Engurasoff v. The Coca-Cola Company, et al.
`Case No. 4:13-CV-03990-JSW
`
`Aumiller v. The Coca-Cola Company, et al.
`Case No. 4:14-cv-01447-JSW
`
`Merritt v. The Coca-Cola Company, et al.
`Case No. 4:14-cv-0l067-JSW
`
`Nobles v. The Coca-Cola Company, et al.
`Case No. 4:13-cv-05017-JSW
`
`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
`
`
`
`

`

`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 2 of 42
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`Plaintiffs Ayanna Nobles, Thomas C. Woods1, Paul Merritt, George Engurasoff, and
`Joshua Ogden (collectively “Plaintiffs”), individually, and on behalf of similarly situated persons,
`
`through their undersigned attorneys, bring this lawsuit against Defendants The Coca-Cola
`
`Company, Coca-Cola Refreshments USA, Inc., BCI Coca-Cola Bottling Company of Los
`
`Angeles, and Coca-Cola Bottling Company of Sonora, California Inc. (collectively
`
`“Defendants”).
`
`PRELIMINARY STATEMENT
`
`1.
`
`This case is about Coca-Cola, one of the most famous and respected brands in the
`
`world. Faced with clear evidence that it was losing market share because consumers increasingly
`
`preferred beverages without artificial flavoring and chemical preservatives, The Coca-Cola
`
`Company, owner of the brand, responded not by providing consumers with what they wanted -- a
`
`natural and healthy drink -- but by deceiving them into thinking that Coca-Cola was natural and
`
`healthy when in fact it contained artificial flavoring and chemical preservatives. This choice by
`
`The Coca-Cola Company was not just an example of bad corporate citizenship. It also clearly
`
`violated federal and state laws specifically prohibiting the precise kind of misbranding and
`
`misleading behavior exhibited by The Coca-Cola Company.
`
`The Coca-Cola Company is the world’s largest beverage company. Its product,
`2.
`Coca-Cola,2 is the world’s most popular soft drink and is one of the most well-known and trusted
`brand names in the world. Sales of Coca-Cola, however, are fueled by false and deceptive
`
`representations that Coca-Cola is not only a healthy product, but one free of artificial flavoring
`
`and chemical preservatives. Every container of Coca-Cola sold in the United States either falsely
`
`states that it does not contain artificial flavoring and chemical preservatives, or fails to
`
`affirmatively state - - as required by state and federal law - - that it, in fact, contains both artificial
`
`flavoring and chemical preservatives.
`
`1 Plaintiff Thomas C. Woods has substituted and replaced plaintiff Bristol I. Aumiller.
`2 As used in this complaint “Coca-Cola” is defined to mean that specific soft drink that is
`commonly sold by Defendants in red cans or bottles containing red labels, and that is sometimes
`referred to by Defendants as the “original formula.” As used herein, the term “Coca-Cola” is not
`meant to include any distinct soft drinks, including but not limited to, Diet Coke, Cherry Coke,
`Coca-Cola Life, Coke-Zero, or Caffeine Free Coca-Cola, which may have similar names.
`
`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
`
`
`
`2
`
`

`

`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 3 of 42
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`3.
`
`Advertisements containing the “Coca-Cola” brand name are ubiquitous throughout
`
`the country. There are few places in the United States where it is not prominently displayed on
`
`billboards, television and radio advertisements, and in-store displays. Defendants leverage this
`
`brand name to sell millions of containers of Coca-Cola. Through their advertising efforts,
`
`Defendants portray Coca-Cola as an all-American product. They also falsely portray Coca-Cola
`
`as a healthy and all-natural product.
`
`4.
`
`Indeed, The Coca-Cola Company’s own website directs consumers to the website
`
`of The Coca-Cola Company Beverage Institute for Health & Wellness, which portrays
`
`Defendants’ products, including Coca-Cola, as an integral part of a healthy diet and an excellent
`
`means of maintaining proper hydration. The website specifically states that: “Global in scope, the
`
`Beverage Institute for Health & Wellness (BIHW) is part of The Coca-Cola Company’s ongoing
`
`commitment to use evidence-based science to advance knowledge and understanding of
`
`beverages, beverage ingredients, and the important role that active healthy lifestyles play in
`
`supporting health and wellbeing.” See http://beverageinstitute.org/us/about-us/.
`
`5.
`
`It goes so far as to recommend that Defendants’ products, including Coca-Cola,
`
`should specifically be used to maintain the health and well-being of children. It states: “Studies
`
`suggest that active children consume more fluids and stay better hydrated when the liquid is
`
`flavored. Beverages that are sweetened with caloric sweeteners or with low- and no-calorie
`
`sweeteners can be an important contributor to hydration, providing a sweet taste that encourages a
`
`child to consume more fluid.” See http://beverageinstitute.org/us/article/special-considerations-
`
`for-children/.
`
`6.
`
`Defendants’ concerted efforts to employ false and deceptive labeling practices to
`
`mislead consumers into thinking Coca-Cola is natural and healthy, when in fact it is neither, did
`
`not occur by accident. Rather, it was a response to changing consumer preferences, which were
`
`causing Coca-Cola, as well as other carbonated soft drinks, to lose market share.
`
`7.
`sodas were precipitously dropping and reached their lowest levels since 1997. See Jessica Wohl,
`
`By 2008, Defendants realized they had a significant problem. Sales of carbonated
`
`U.S. Soft-Drink Volume Decline Steepest in Decades, Reuters, Mar. 30, 2009.
`
`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
`
`
`
`3
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`

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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 4 of 42
`
`
`
`8.
`
`Worse still, consumers were not only buying and drinking less soda, they were
`
`switching to other beverages entirely. Studies showed that because soda was associated with
`
`empty calories and artificial ingredients, consumers were fundamentally changing their drinking
`
`habits. One leading study showed that between 2003 and 2008 the regular carbonated soft drink
`
`market lost 15.6 million adult drinkers. Marketing research showed that consumers were
`
`increasingly interested in all natural foods that did not contain chemical preservatives or artificial
`
`flavors. See Classic Soft Drinks Fall Out of Favor, Mar. 30, 2009 (available at
`
`http://www.mintel.com/press-centre/food-anddrink/classic-soft-drinks-fall-out-of-favor).
`
`9.
`
`These developments were a major concern for Defendants because their beverage
`
`business, and their flagship Coca-Cola brand, contained chemical preservatives and artificial
`
`flavorings.
`
`10.
`
`Defendants were aware that Coca-Cola’s sales were declining because, as
`
`established by consumer surveys, an overwhelming majority of consumers correctly and
`
`accurately perceived their products to be unnatural, artificial and chemically preserved. This
`
`critical fact was compounded as competitors like PepsiCo. and Red Bull GmBH began
`
`introducing new cola products that were being touted as “all natural” or “100% natural” and
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`which lacked certain artificial ingredients, like the phosphoric acid the Defendants used to
`
`artificially flavor and chemically preserve Coca-Cola.
`
`11.
`
`The situation so substantially affected Defendants that The Coca-Cola Company’s
`
`Chief Marketing and Commercial Officer referred to these changes in consumer preferences as a
`
`“category five” hurricane that was “really bearing down on us.” See FD (Fair Disclosure) Wire,
`
`The Coca Cola Company Analyst Meeting Day 1, Nov. 16, 2009. He went on to note that: “That
`
`is not a fad. Consumers who classify themselves as LOHAS [Lifestyles of Health and
`
`Sustainability] or those who value natural ingredients represent in some markets 35% of the total
`
`market.” Id.
`
`
`
`
`
`The Pemberton Campaign
`
`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
`
`
`
`4
`
`

`

`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 5 of 42
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`12.
`
`Rather than reformulate Coca-Cola and their other soft drinks to appeal to these
`
`changing consumer preferences for natural and healthy beverages, Defendants adopted a global
`
`campaign of disinformation, false advertising, false labeling and misbranding, dubbed
`
`“Pemberton” after John Pemberton, the pharmacist who invented Coca-Cola. This campaign was
`
`designed to mislead into falsely believing that Coca-Cola was not artificially flavored or
`
`chemically preserved. In so doing, they not only misled and deceived consumers but, as described
`
`below, broke a number of federal and state food labeling laws designed to protect consumers
`
`from such illegal and deceptive practices.
`
`13.
`
`The main goal of the Pemberton campaign was, as admitted at the time by the
`
`Global Brand Director of Coca-Cola, to falsely represent to consumers that Coca-Cola never had,
`
`and never would, add chemical preservatives or artificial flavorings. As a spokesperson for
`
`Defendants stated in 2008, “‘Pemberton’ is more fact-based, affirming for consumers that Coca-
`
`Cola never has had, and never will have, added preservatives or artificial flavors.” See New York
`
`Times, Aug. 6, 2008, “Coke Campaign Focuses on What’s Not in the Can; ‘No Added
`
`Preservatives or Artificial Flavors.’”
`
`14.
`
`As a key linchpin of their Pemberton Campaign, Defendants placed false
`
`affirmative statements on product labels and packages of two-liter bottles and 12-pack and 24-
`
`pack cartons of Coca-Cola. Specifically, the Defendants placed a false statement on the labels and
`
`packages representing that Coca-Cola contained “no artificial flavors. no preservatives added.
`
`since 1886.” This statement, as well as the entire premise of the Pemberton campaign, was false
`
`and misleading.
`
`15.
`
`In fact, Coca-Cola contains phosphoric acid. Phosphoric acid is both an artificial
`
`flavoring and a chemical preservative.
`
`16.
`
`Also false was the prominent representation on Coca-Cola containers and
`
`advertisements that Coca-Cola is still made with the “original formula” devised by Pemberton in
`
`1886. In fact, the composition of Coca-Cola has repeatedly changed over time. These changes
`
`have included, among other things, an increase in the amount of unhealthy ingredients like sugar
`
`and corn syrup and the addition of artificial ingredients like phosphoric acid. See Coca-Cola
`
`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
`
`
`
`5
`
`

`

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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 6 of 42
`
`
`
`Bottling Company of Shreveport, Inc. v. The Coca-Cola Company, 563 F. Supp. 1122, 1131 (D.
`
`Del. 1983).
`
`17.
`
`Ignoring the falsity of their statements and labeling, Defendants conceded that
`
`Pemberton was designed to deceive consumers by misrepresenting that Coca-Cola does not use
`
`chemical preservatives or artificial flavorings. According to one of Defendants’ marketing
`
`directors: “When we talked to consumers about Coke, we realized they did not know that it has
`
`no added preservatives or artificial flavors. We felt it was important to reassure Coke drinkers of
`
`this fact.” See New York Times, Aug. 6, 2008, “Coke Campaign Focuses on What’s Not in the
`
`Can; ‘No Added Preservatives or Artificial Flavors.’”
`
`18.
`
`Similarly, a regional marketing director for a Coca-Cola entity was quoted as
`
`saying: “Our research has highlighted that there is a need and an opportunity to remind consumers
`
`that Coca-Cola is the ‘real thing.’ The Pemberton campaign is simply about letting consumers
`
`know that the formula for Coca-Cola has not changed for more than 120 years.” See Marketing
`
`Magazine, Sept. 5, 2008, “Coca-Cola: New and Improved? Nope, Still the Same.”
`
`19.
`
`The Coca-Cola Company’s own Chief Financial Officer, Gary Fayard, made the
`
`following statement at a consumer conference held on September 3, 2008:
`
`North America, it’s the one last market we really need to turnaround. We
`acknowledge it but we’ve got some very good plans to do that. We think we know
`what we need to do. We needed to fix our marketing and we think we’ve done
`that. We’ve got very good marketing in the US now. We’ve started what we call
`Project Pemberton. This is about sparkling beverages. It will be print. You’ll see it
`soon. It will be print but it’s actually re-educating the consumer, and I don’t know
`that you can read what it says there but it says “No preservatives added, no
`artificial flavors since 1886. Never has, never will”. And if you think about the
`new teenagers today and young adults as they’ve grown up and there’s just an
`explosion of choices they didn’t grow up with their limited choices like I did and
`maybe they’ve forgotten that Coke actually was born in 1886 and there weren’t
`artificial ingredients back then. This is all pretty natural stuff and we’re just -- to
`remind people.
`See The Coca-Cola Company at Lehman Brothers Back-to-School Consumer Conference, FD
`
`(Fair Disclosure) Wire, Sept. 3, 2008.
`
`20.
`
`Additionally, Defendants concealed the fact that Coca-Cola contained artificial
`
`flavors and chemical preservatives by failing to make legally mandated labeling disclosures
`
`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
`
`
`
`6
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`

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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 7 of 42
`
`
`
`detailing the function of ingredients like phosphoric acid that are used as artificial flavorings and
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`chemical preservatives in those products.
`
`21.
`
`Under federal, California, and Florida law, Defendants are required to disclose the
`
`presence of artificial flavoring and chemical preservatives in food products, including Coca-Cola.
`
`22.
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`Defendants are also required to clearly state the function of any ingredient that is
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`used as either an artificial flavoring or a chemical preservative.
`
`23.
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`Nowhere on Coca-Cola labels or packaging is the function of phosphoric acid
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`identified.
`
`24.
`
` Nowhere on Coca-Cola labels or packaging does it state that the product contains
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`artificial flavoring or chemical preservatives.
`
`25.
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`Instead, many labels and packages of Coca-Cola affirmatively state that it does
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`not contain any artificial flavorings or chemical preservatives, and never had since 1866.
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`26.
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`Such false statements and omissions violate federal, California, and Florida law
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`and render Coca-Cola illegally misbranded.
`
`27.
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`These products cannot be lawfully manufactured, distributed, or sold to
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`consumers.
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`28.
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`The Food, Drug & Cosmetic Act (“FDCA”) and regulations promulgated
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`thereunder bar food manufacturers and distributors like Defendants from selling misbranded and
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`illegal products that contain labels that fail to accurately disclose the nature of their contents.
`
`29.
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`Under federal, California, and Florida law, products such as Coca-Cola are
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`“misbranded” if their “labeling is false or misleading in any particular” or does not contain certain
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`information on its labeling. See 21 U.S.C. § 343(a), (f) and (k); California Health & Safety Code
`
`§ 110660, 201(1), (6) and (11); Florida Food Safety Act § 500, et seq.
`
`30.
`
` Coca-Cola products are misbranded under federal, California, and Florida law,
`
`because they fail to disclose on their labeling that they contain artificial flavors or chemical
`
`preservatives. See 21 U.S.C. § 343(k); California Health & Safety Code § 110660; Florida Food
`
`Safety Act § 500, et seq.
`
`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
`
`
`
`7
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`

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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 8 of 42
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`31.
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`Because the manufacture and sale of Coca-Cola violates the food labeling laws of
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`California and Florida, the actions of Defendants also constitute predicate acts under consumer
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`protection laws of California, including, California Business and Profession Code Section 17200
`
`et seq., California Business and Profession Code Section 17500, et seq.; California Civil Code
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`§1750, et seq., Florida Consumer Protection Statute §§ 501.201-501.213, and Florida Intentional
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`False Advertising Statute §817.44.
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`32.
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`Defendants are major international food manufacturers and are well aware of the
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`requirements of federal and state laws. Yet, they have chosen to ignore those laws in order to
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`increase Coca-Cola’s sales and profits at the expense of consumers, including Plaintiffs.
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`33.
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`In order to conceal from consumers (including Plaintiffs) that Coca-Cola includes
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`artificial flavorings and chemical preservatives, Defendants have knowingly and intentionally
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`failed to disclose their existence in Coca-Cola.
`
`34.
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`Plaintiffs, individually, and on behalf of other consumers who purchased Coca-
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`Cola, now bring this action, not only to compensate consumers, but to stop Defendants from
`
`continuing to engage in such unlawful actions.
`
`PARTIES
`
`35.
`
`36.
`
`37.
`
`38.
`
`39.
`
`40.
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`Plaintiff Engurasoff is a resident citizen of San Jose, California.
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`Plaintiff Ogden is a resident citizen of Morgan Hill, California.
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`Plaintiff Noble is a resident citizen of Alameda County, California.
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`Plaintiff Woods is a resident citizen of Tallahassee, Florida.
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`Plaintiff Merritt is a resident of citizen Laguna Beach, California.
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`Plaintiffs purchased more than $25.00 worth of Coca-Cola during the relevant time
`
`period (the “Class Period”).
`
`41.
`
` Upon information and belief, Defendant The Coca-Cola Company is a Delaware
`
`corporation, with its principal place of business at One Coca-Cola Plaza, Atlanta, Georgia.
`
`42.
`
`Defendant The Coca-Cola Company has the world’s largest beverage distribution
`
`system. More than 1.8 billion servings of its products are consumed every day.
`
`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
`
`
`
`8
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`

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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 9 of 42
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`
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`43.
`
` Upon information and belief, Defendant Coca-Cola Refreshments USA, Inc. is a
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`Delaware corporation with its principal place of business at One Coca-Cola Plaza, Atlanta,
`
`Georgia.
`
`44.
`
` Upon information and belief, Defendant Coca-Cola Refreshments USA, Inc. is
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`The Coca-Cola Company’s bottling and customer service organization for North America.
`
`45.
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`Coca-Cola Refreshments USA, Inc. manufactures, distributes, and sells
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`approximately 88 percent of The Coca-Cola Company’s unit case volume in the United States.
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`Upon information and belief, this includes Coca-Cola.
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`46.
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`Upon information and belief, Defendants BCI Coca-Cola Bottling Company of
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`Los Angeles and Coca-Cola Bottling Company of Sonora, California, Inc., are subsidiary
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`affiliates of the Coca-Cola Company, with their respective principal place of business located at
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`One Coca-Cola Plaza, Atlanta, Georgia, and 3624 Jefferson Avenue, Redwood City, CA 94062.
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`47.
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`Coca-Cola LA and Coca-Cola Sonoma (combined) manufacture, distribute, and
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`sell approximately 50 percent of the Coca-Cola Company’s unit case volume of Coca-Cola soda
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`in California.
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`JURISDICTION AND VENUE
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`48.
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`This Court has original jurisdiction over this action under 28 U.S.C. § 1332(d)
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`because this is a class action in which: (1) the matter in controversy exceeds the sum or value of
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`$5,000,000, exclusive of interest and costs; (2) a member of the class of plaintiffs is a citizen of a
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`State different from a defendant; and (3) the number of members of all proposed plaintiff classes
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`in the aggregate is greater than 100.
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`49.
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` The Court has personal jurisdiction over Defendants because a substantial portion
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`of the wrongdoing alleged herein occurred in California. Defendants also have sufficient
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`minimum contacts with California, and have otherwise intentionally availed themselves of the
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`markets in California (and Nationwide) through the promotion, marketing, and sale of products
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`sufficient to render the exercise of jurisdiction by this Court permissible under traditional notions
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`of fair play and substantial justice.
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`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 10 of 42
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`50.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) and (3) because
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`a substantial part of the events or omissions giving rise to these claims occurred in this District, a
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`substantial part of the property that is the subject of this action is situated in this District, and
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`Defendants are subject to the Court’s personal jurisdiction with respect to this action.
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`FACTS RELEVANT TO ALL CLAIMS
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`Coca-Cola Is A Misbranded And Illegal Product
`All containers of Coca-Cola sold in the United States are misbranded and illegal.
`51.
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`52.
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`Defendants knowingly and intentionally sold these misbranded products to
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`consumers (including Plaintiffs) with the intent to deceive.
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`53.
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`54.
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`55.
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`Plaintiffs purchased Coca-Cola within the Class Period in California and Florida.
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`Plaintiff Engurasoff’s purchases of Coca-Cola included 2 liter bottles.
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`Plaintiff Ogden’s purchases of Coca-Cola included 24-packs of 12 ounce cans and
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`12-packs of 12 ounce cans.
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`56.
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`Plaintiff Noble’s purchase of Coca-Cola included 2 liter bottles and 12-packs of 12
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`ounce cans.
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`57.
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`Plaintiff Wood’s purchase of Coca-Cola included 2 liter bottles and 12-packs of 12
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`ounce cans.
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`58.
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`Plaintiff Merritt’s purchase of Coca-Cola included 2 liter bottles and 12-packs of
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`12 ounce cans.
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`59.
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`All containers of Coca-Cola fail to state that any Coca-Cola ingredients are used as
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`artificial flavoring or as a chemical preservative.
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`60.
`cans of Coca-Cola state, “no artificial flavors. no preservatives added. since 1886.”
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` Labels on 2 liter bottles, 24-packs of 12 ounce cans, and 12-packs of 12 ounce
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`61.
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`The ingredients in Coca-Cola include phosphoric acid, which is used in the
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`product as both an artificial flavoring and a chemical preservative.
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`Phosphoric Acid Is An Artificial Flavoring
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`62.
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`63.
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`Phosphoric acid is an artificial flavoring.
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`Phosphoric acid provides a characteristic tart taste that is imparted into Coca-Cola.
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`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 11 of 42
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`
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`64.
`soft drinks, including Coca-Cola, to add tartness to the beverage.” See http://productnutrition.thecoca-
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`The Coca-Cola Company’s own website states: “Phosphoric acid is used in certain
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`colacompany.com/ingredients.
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`65.
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`The website also discussed acidulants such as phosphoric acid and stated that
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`acidulants are: “Acids, which include phosphoric acid and citric acid, and acidic salts help to
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`provide flavoring. They are responsible for the tart taste which helps to balance the sweetness.
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`They also help to reduce the growth of microorganisms (i.e., protect the food from spoiling).”
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`66.
`Company Beverage Institute for Health & Wellness See
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`Today, those same statements have been moved to the website of The Coca-Cola
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`http://beverageinstitute.org/us/beverageingredient-glossary/.
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`67.
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`These statements were also present on The Coca-Cola Company’s website located
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`at www.cocacolaambassadors.com.
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`68.
`Defendants explicitly state that phosphoric acid “is used to add a tangy taste to some colas.” See
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` In a publication entitled “What is in Coca-Cola? A briefing on our ingredients,”
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`http://conoce.cocacola.es/img/comunicacioncientifica/docu_ingredientes_ing.pdf.
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`21 C.F.R. § 101.22(a)(1) provides that, “The term artificial flavor or artificial
`
`69.
`flavoring means any substance, the function of which is to impart flavor, which is not derived
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`from a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root,
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`leaf or similar plant material, meat, fish, poultry, eggs, dairy products, or fermentation products
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`thereof.”
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`70.
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`Similarly, The Coca-Cola Company’s website defines “artificial flavors” as
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`“substances used to impart flavor that are not derived from a natural substance such as a spice,
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`fruit or fruit juice, vegetables or herbs.” See http://beverageinstitute.org/us/beverage-
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`ingredientglossary/.
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`71.
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`As noted above, the function of phosphoric acid in Coca-Cola, in part, is to impart
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`flavor.
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`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 12 of 42
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`72.
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`Phosphoric acid is not derived from a spice, fruit or fruit juice, vegetable or
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`vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish,
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`poultry, eggs, dairy products, or fermentation products thereof.
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`73.
`101.22(a)(1).
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`74.
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`75.
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` Therefore, phosphoric acid is an artificial flavoring under 21 C.F.R. §
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`Phosphoric acid also meets Defendants’ own definition of “artificial flavor.”
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`Phosphoric acid does not satisfy the criteria to be a natural flavoring.
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`21 C.F.R. § 101.22(a)(3) provides that, “The term natural flavor or natural
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`76.
`flavoring means the essential oil, oleoresin, essence or extractive, protein hydrolysate, distillate,
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`or any product of roasting, heating or enzymolysis, which contains the flavoring constituents
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`derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark,
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`bud, root, leaf or similar plant material, meat, seafood, poultry, eggs, dairy products, or
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`fermentation products thereof, whose significant function in food is flavoring rather than
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`nutritional.”
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`77.
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`Similarly, the website of Defendants or affiliated entities defines “natural flavors”
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`as follows: “Natural flavors are derived from the essential oils or extracts of spices, fruits,
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`vegetables and herbs.” See http://beverageinstitute.org/us/beverage-ingredient-glossary/.
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`78.
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`Phosphoric acid is not an essential oil, oleoresin, essence or extractive, protein
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`hydrolysate, distillate, or any product of roasting, heating or enzymolysis, which contains the
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`flavoring constituents derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible
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`yeast, herb, bark, bud, root, leaf or similar plant material, meat, seafood, poultry, eggs, dairy
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`products, or fermentation products thereof.
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`79.
`101.22(a) (3).
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`80.
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`81.
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` Therefore, phosphoric acid is not a “natural flavor,” as defined in 21 C.F.R. §
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`Nor does phosphoric acid meet the Defendants’ own definition of a natural flavor.
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`The FDA considers phosphoric acid to be an artificial flavoring.
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`82.
`phosphates, phosphoric acid is described as follows:
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`In the 1975 Select Committee on GRAS Substances (“SCOGS”) Report on
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`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 13 of 42
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`
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`Phosphoric acid, H3PO4, is used in the commercial production of
`polyphosphates, metaphosphates, and other orthophosphates. They serve
`as acidulants, sequestrants, and flavoring agents in nonalcoholic
`beverages.
`After the SCOGS review, in 1979, FDA published a proposed rule
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`83.
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`explicitly stating that phosphoric acid is used as a “flavoring agent,” as that term is
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`defined in 21 C.F.R. § 170.3(o)(12). See 44 Fed. Reg. 74845, 74854 (Dec. 18, 1979).
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`84.
`Recognized as Safe” or “GRAS” for use as a flavoring agent. See 44 Fed. Reg. at 74854.
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` The proposed rule intended to formally identify phosphoric acid as “Generally
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`85.
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` However, together with about eighty other pending proposals, the proposed rule
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`was withdrawn - - not because FDA no longer considered phosphoric acid to be GRAS or a
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`flavoring agent - - but because FDA determined “that the backlog of pending proposals dilutes its
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`ability to concentrate on higher priority regulations that are mandated by statute or are necessary
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`to address current public health issues. Because of the agency’s limited resources and changing
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`priorities, FDA has been unable to: (1) Consider, in a timely manner, the issues raised by the
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`comments on these proposals and (2) complete the action on them.” See 69 Fed. Reg. 68831-01,
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`68832 (Nov. 26, 2004).
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`86.
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` In addition, FDA commissioned “A Comprehensive Survey of Industry on the
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`Use of Food Chemicals Generally Recognized as Safe” (September 1972) (“GRAS Report”). The
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`GRAS Report is incorporated into 21 C.F.R. § 170.3(o).
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`87.
`technical functions that include use as a “flavoring agent.” See GRAS Report Table 6 at 20.
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` The GRAS Report expressly states that phosphoric acid is a GRAS substance with
`
`88.
`phosphoric acid as being used in their products as a flavoring agent. Id.
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` The GRAS Report shows that twenty-three food manufacturers identified
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`89.
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` Phosphoric acid is listed on an FDA recognized list of GRAS flavoring substances
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`published by the Flavor and Manufacturers Association (“FEMA”).
`
`90.
`published in the scientific journal, Food Technology, Vol. 19, No. 2. The FDA has specifically
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` Phosphoric acid is specifically listed in FEMA GRAS List III, which was
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`recognized FEMA GRAS List III as reliable. See 44 Fed. Reg. 71460, 71461 (Dec. 11, 1979).
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`AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
`Case No. 4:14-md-02555-JSW
`
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`Case 4:14-md-02555-JSW Document 79 Filed 08/11/15 Page 14 of 42
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`91.
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`Defendants are well aware of this GRAS list. The Coca-Cola Company is a
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`leading member of FEMA.
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`92.
`governors. See http://www.femaflavor.org/officersgovernors. A representative of The Coca-Cola
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` A representative of The Coca-Cola Company presently sits on FEMA’s board of
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`Company has served as FEMA’s president on multiple occasions, including as recently as 2012.
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`See http://www.femaflavor.org/past-fema-presidents.
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`93.
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` The Federal Register also