Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`CIVIL ACTION NO. 20-10877-RGS
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`THERESA FITZGERALD, on behalf of
`herself and all others similarly situated,
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`v.
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`POLAR CORP.
`
`MEMORANDUM AND ORDER ON
`DEFENDANT’S MOTION TO DISMISS
`
`November 10, 2020
`
`
`STEARNS, D.J.
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`Theresa Fitzgerald brought this aspiring class action against Polar
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`Corp. d/b/a Polar Beverages (Polar) alleging common-law fraud, deceit, and
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`misrepresentation (Count I), breach of express and implied warranties
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`(Counts II and III), negligent misrepresentation (Count IV), unjust
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`enrichment/restitution (Count V), and violations of the Massachusetts
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`Consumer Protection Act, Gen. Laws ch. 93A (Count VI). Fitzgerald asserts
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`that Polar’s ginger ale brands (Polar Ginger Ale, Polar Green Tea Ginger Ale,
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`and Polar Pomegranate Ginger Ale) are falsely and deceptively labeled,
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`advertised, and marketed “as ‘MADE FROM REAL GINGER.’” Compl. ¶ 2.
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`The Complaint appears to have been imperfectly copied from a nearly
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`identical case brought in the Northern District of California involving
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 2 of 14
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`Canada Dry ginger ale. See Fitzhenry-Russell v. Keurig Dr. Pepper, 345 F.
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`Supp. 3d 1111 (N.D. Cal. 2018); see also Compl. ¶ 62 (mistakenly referencing
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`“Canada [D]ry (sic)” as the instant defendant).
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`
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`In essence, Fitzgerald contends that the claim of “real ginger”1
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`leads consumers to reasonably believe that Polar’s soft drinks are
`made using real ginger root — i.e., the spice made by chopping or
`powdering the root of the ginger plant, — and that consumers
`who drink the soft drink will receive the health benefits
`associated with consuming real ginger.
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`Compl. ¶ 2 (footnote omitted). Fitzgerald acknowledges that Polar’s ginger
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`ale “contains some ginger compounds, [however] the miniscule amount that
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`Polar uses provides none of the health benefits consumers associate with real
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`ginger.” Id. ¶ 18.2 Fitzgerald claims that “in a market environment where
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`consumers were fleeing ‘regular’ sodas due to increasing concerns about the
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`1 The term “real ginger” is somewhat of an oxymoron. Ginger is
`botanically a cultigen, meaning that it has no ancestors in the wild nor is it
`genetically unique. Rather it is a product of several thousand years of genetic
`breeding and modification of the Zingiber officinale flowering plant. See P.
`N. Ravindran & K. Nirmal Babu, Ginger: The Genus Zingiber (CRC Press
`2016). Botanically, ginger (as it is most commonly known), is one of the
`spices that make up the Zingiberaceae family. Apart from the version best
`known to bakers as a ground spice (gingerbread) or to sushi lovers in its
`pickled form, other gingers familiar to kitchen mavens include turmeric and
`cardamon.
`
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`2 The proposition that consumers associate a “health benefit” with a
`sugared carbonated beverage is somewhat dubious, although Confucius is
`said to have eaten raw ginger with every meal for health reasons. Barbara
`Pickersgill, The Cultural History of Plants at 163-164 (2005).
`2
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 3 of 14
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`health problems they cause[,] Polar’s misrepresentations have misled
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`thousands of consumers and caused them to pay a premium for Polar
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`beverages.” Id. ¶ 4.3
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`Polar moves to dismiss the Complaint asserting that there is nothing
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`false about Polar’s advertising claims – its ginger ales are made with some
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`ginger (as plaintiff concedes), and the labeling of the drinks makes no
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`representations as to the amount or type of ginger beyond the hyperbolic
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`reference to “real.” Polar notes that Fitzgerald claims that the label, “Made
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`From Real Ginger,” causes “consumers to reasonably believe that the
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`beverage contains ‘ginger root.’” Id. ¶ 2 (emphasis added). Polar next argues
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`that, as Fitzgerald’s claims are based on consumer fraud, her Complaint must
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`(and does not) satisfy the “who, what when and where” pleading
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`requirements of Fed. R. Civ. P. 9(b). Polar finally wheels up the “economic
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`loss doctrine” which precludes recovery of economic damages in certain tort
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`actions in the absence of actual personal or property damage.
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`
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`Relying on Aspinall v. Philip Morris Companies, Inc., 442 Mass. 381
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`(2004), Fitzgerald counters that to survive a motion to dismiss she “need
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`only allege facts showing it is plausible that a statement ‘has the capacity to
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`3 The proposed class includes “[a]ll persons who, between May 7, 2016
`and the present, purchased in the United States, any Polar Ginger Ale.”
`Compl. ¶ 31.
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`3
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 4 of 14
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`mislead consumers, acting reasonably under the circumstances, to act
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`differently from the way they otherwise would have acted (i.e., to entice a
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`reasonable consumer to purchase the product).’” Id. at 396. She further
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`contends “that the claim ‘MADE FROM REAL GINGER’ on Polar ginger ale
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`is literally false because natural flavor and trace amounts of ginger
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`compounds is not real ginger.”4 Pl.’s Opp’n at 5. Fitzgerald finally argues
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`that her breach of express warranty, breach of implied warranty, and unjust
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`enrichment claims sound in contract and therefore are not subject to the
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`federal Rule 9(b) heightened pleading standard. See id. at 15.
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`4 In her Opposition, Fitzgerald backs away from this assertion, arguing
`instead that
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`Polar’s “MADE FROM REAL GINGER” claim is literally false
`because the product does not contain ginger root and that Polar
`made these statements with knowledge of their falsity. Similarly,
`for Plaintiff’s negligent misrepresentation claim, Plaintiff has
`alleged that Polar provided false information for the guidance of
`others. (“Throughout the Class Period, Polar prominently made
`the claim “MADE FROM REAL GINGER” on the front of its Polar
`Ginger Ale cans and bottles because it knew that would cultivate
`a wholesome and healthful image for Polar . . .”). Contrary to
`Polar’s argument, Plaintiff’s claims do not require literal falsity.
`The First Circuit has said that “the locus classicus of fraud is a
`seller’s affirmative false statement or a half-truth, i.e., a
`statement that is literally true but is made misleading by a
`significant omission.”
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`Pl.’s Opp’n at 20 (emphasis added) (internal citations omitted).
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`4
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 5 of 14
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`BACKGROUND
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`Fitzgerald states that she purchased various Polar ginger ales on
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`numerous occasions within Massachusetts over the past four years. She
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`typically purchases one-liter bottles of Polar Ginger Ale at a local grocery,
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`most recently Shaw’s in West Wareham, Massachusetts. She contends that
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`in buying Polar ginger ales she relied on the product label claim “MADE
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`FROM REAL GINGER”, which she “believe[s] . . . meant that Polar Ginger
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`Ale was made using ginger root and was, as a result, a healthier alternative
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`to regular sodas.” Compl. ¶ 28.5 Fitzgerald alleges that “[c]onsumer
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`research shows that the vast majority of consumers understand the phrase
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`‘MADE FROM REAL GINGER’ to mean that Polar Ginger Ale is made using
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`ginger root, and not miniscule amounts of a flavor extract and that they will
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`obtain the health benefits of consuming real ginger.” Id. ¶ 17.6
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`
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`5 A consumer who encountered chunks of ginger root in her drink
`would likely be bringing a different lawsuit, as ginger in its raw form can have
`deleterious side effects, particularly for women who are pregnant. WebMD:
`Ginger, https://www.webmd.com/vitamins/ai/ingredientmono-961/ginger
`(last visited Nov. 10, 2020).
`
`
` 6
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` Fitzgerald fails to specify the source of the research or whether Polar
`was a part of the alleged study. Rather she contends that “[t]his research is
`consistent with how Polar intended consumers to interpret the phrase. Polar
`wanted consumers to think the following after seeing the ‘MADE FROM
`REAL GINGER on the label: This is perfect for me! I can now enjoy a drink
`that tastes great AND is made with natural healthier ingredients – like REAL
`ginger.’” Id. ¶ 17.
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`5
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 6 of 14
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`Driving the point home, the Complaint states that
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`[i]n truth, Polar Ginger Ale is not made from real ginger. Instead,
`it is made from carbonated water, high fructose corn syrup
`and/or sugar, citric acid, caramel color, and “natural flavoring,”
`i.e., a flavor compound comprised predominately of flavor
`extracts not derived from ginger, and a miniscule amount of a
`ginger flavor extract. But Polar’s ginger flavor extract is not “real
`ginger” as reasonable consumers understand that term. It is
`manufactured in a lab using various chemicals and extraction
`processes. And, although the flavor extract contains some ginger
`compounds, this microscopic amount of ginger flavor extract
`provides none of the health benefits consumers associate with
`real ginger.
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`Id. ¶ 3.7
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`In describing her damages, Fitzgerald claims that, without ginger root,
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`“the Products have no, or, at, a minimum, a much lower, value to [her].” Id.
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`¶ 29. Fitzgerald states that her injury “was . . . paying more money for the
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`Products that she would have paid otherwise.” Id. Fitzgerald represents that
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` 7
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` Fitzgerald also alleges that Polar advertises that its ginger ale contains
`four times more real ginger than the products of its competitors. The
`allegation has no connection to Polar’s labeling of its drinks. As best the
`court can determine from following a link that Fitzgerald’s Opposition
`provides to Polar’s website, it is true that the website poses the question,
`“What makes Polar Ginger Ale different?” The answer provided is that it is
`“[m]ade with 20% Less Sugar than leading brands and 4x More Real Ginger
`and no preservatives, sodium, or caffeine.” Fitzgerald does not allege that
`she ever saw the website or considered the “4x” claim in making her decision
`to purchase Polar ginger ale or, for that matter, that the claim is untrue. See
`Aspinwall, 442 Mass. at 394; Compl. ¶ 23. Consequently, the court will
`disregard the allegation.
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`6
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 7 of 14
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`if Polar reformulated its ales by using ginger root (in some unspecified
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`quantity), she “would likely purchase Polar’s Products again in the future.”
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`Id. ¶ 30. Fitzgerald admits that she “does not know the [current] formula for
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`Polar’s Products and cannot test whether or not the beverages are made
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`using ginger root before purchasing.” Id. In addition to a monetary award,
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`Fitzgerald asks the court to enjoin Polar from labeling its Products with the
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`phrase “MADE FROM REAL GINGER unless the product is actually made
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`using ginger root rather than a miniscule amount of a ginger flavor extract,”
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`id., although she admits that she does not “know at any given time, which
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`brands are owned by Polar and whether its representations about ‘real
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`ginger’ are truthful.” Id.
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`DISCUSSION
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`
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`“To survive a motion to dismiss, a complaint must contain sufficient
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`factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007)). The court must disregard allegations
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`that are legal conclusions, even when disguised as facts. See Iqbal, 556 U.S.
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`at 681 (“It is the conclusory nature of respondent’s allegations, rather than
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`their extravagantly fanciful nature, that disentitles them to the presumption
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`of truth.”). The court must then determine, based on the allegations that
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`7
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 8 of 14
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`remain and all reasonable inferences that may be drawn from them, whether
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`the Complaint alleges a plausible claim for relief. See id. at 679. Determining
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`whether a claim is plausible is “a context-specific task that requires the
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`reviewing court to draw on its judicial experience and common sense.” Id.
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`Rule 9(b)
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`Polar asserts that Fitzgerald fails to plead her fraud claims with the
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`particularity required under Federal Rule of Civil Procedure 9(b). The
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`“heightened pleading requirement” of Fed. R. Civ. P. 9(b) also applies to
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`claims of misrepresentation made pursuant to Chapter 93A. See Mulder v.
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`Kohl’s Dep’t Stores, Inc., 865 F.3d 17, 22 (1st Cir. 2017). In Dumont v. Reily
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`Foods Co., 934 F.3d 35 (1st Cir. 2019), a case in which a consumer professed
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`disappointment at not finding actual hazelnuts or hazelnut “cream” (it is not
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`clear which) in a package of ground Hazelnut Crème coffee, the First Circuit
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`made short shrift of the Rule 9(b) “four question” test – “the who” being Reily
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`Foods; the “Hazelnut Crème” claim the “what”; the label the “where”; and
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`the occasion on which the plaintiff purchased the coffee the “when.” Id. at
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`39. The court will assume that the same simple fill-in-the-blanks test applies
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`here as well.
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`Counts I and IV
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`8
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`To recover on her fraud claims, Fitzgerald must establish that Polar
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`made a false representation of material fact, with knowledge of its falsity, for
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`the purpose of inducing her to act on this representation, that she reasonably
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`relied on the representation as true, and that she acted upon it to her
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`detriment. See Masingill v. EMC Corp., 449 Mass. 532, 540 (2007).
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`Negligent misrepresentation requires the same elements, “except that the
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`defendant needs neither knowledge that the statement was false nor intent
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`to deceive the plaintiff.” Cabi v. Boston Children’s Hosp., 161 F. Supp. 3d
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`136, 163 (D. Mass. 2016), (citing Kitner v. CTW Transp., Inc., 53 Mass. App.
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`Ct. 741, 749 (2002)). “There is an important threshold determination for any
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`misrepresentation claim, be it for deceit or for negligent misrepresentation:
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`only statements of fact are actionable; statements of opinion cannot give rise
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`to a deceit action, or to a negligent misrepresentation action.” Cummings v.
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`HPG Int’l, Inc., 244 F.3d 16, 21 (1st Cir. 2001) (internal citations omitted).
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`“[S]tatements that are susceptible of actual knowledge can give rise to a claim
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`of deceit, if those statements are false.” Id. at 22, quoting Zimmerman v.
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`Kent, 31 Mass. App. Ct. 72, 74-75 (1991). Counts I and IV fail on the bedrock
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`ground of the absence of any false statement. Fitzgerald concedes that, while
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`the amount of ginger in Polar’s ales is “miniscule,” some ginger is contained
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`in the formula. She also concedes that the Polar labeling makes no
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`9
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 10 of 14
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`representation as to the specific amount of ginger the drinks contain.
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`Finally, no reasonable consumer could rely on a claim of “real ginger” in a
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`soft drink as a representation that the drink contains chunks of “ginger root”
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`as opposed to a ginger taste.8 Accordingly, Counts I and IV must be
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`dismissed.
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`Counts II and III
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`In Count II, Fitzgerald alleges a breach of express warranty, “under
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`Massachusetts law, . . . that Polar Ginger Ale is ‘Made From Real Ginger’
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`[which] is an affirmation of fact or promise that the Product is made using
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`ginger root and contains more than miniscule amounts of ginger . . . .”
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`Compl. ¶¶ 52-53. Count III, citing Mass. Gen. Laws ch. 106, § 2-314(e),
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`alleges a breach of an implied warranty of merchantability for failing to
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`“conform to the promise or affirmation of fact made on the container or label
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`. . . that the Product is MADE FROM REAL GINGER . . . when it is made only
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`from miniscule amounts of ginger flavor extract, not from ginger root.”
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`8 According to the Shorter Oxford English Dictionary (3d ed. 1969), the
`most common definition of “ginger” is “’[t]he rhizome of the tropical plant
`Zingiber officinale, characterized by its hot spicy taste; used in cookery and
`medicine and as a sweetmeat.” It can also refer to a “sandy” color of hair, a
`wine, or a hot temper, but not to a “root” (other than to a botanist familiar
`with the scientific meaning of the prefix “rhizo.”).
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`10
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 11 of 14
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`Compl. ¶¶ 60-61. Counts II and III fail for the same reason that Counts I and
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`IV come up short and will, consequently, also be dismissed.9
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`Count V
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`To succeed with an unjust enrichment claim under Massachusetts law
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`(Count V), Fitzgerald must show that Polar “received, was aware of, and
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`accepted or retained a benefit conferred by the plaintiffs
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`‘under
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`circumstances which make such acceptance or retention inequitable.’” Lass
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`v. Bank of Am., N.A., 695 F.3d 129, 140 (1st Cir. 2012), (quoting Vieira v.
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`First Am. Title Ins. Co., 668 F. Supp. 2d 282, 294 (D. Mass. 2009)); see also
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`9 Moreover, the only damages asserted in the Complaint are economic
`ones – “the amount [putative plaintiffs] paid for the Products”, Compl. ¶ 48;
`“paying less for Polar Ginger Ale,” id. ¶ 56; “would not have purchased Polar
`or would have, at a minimum, paid less for the product,” id. ¶ 66; “suffered
`pecuniary loss,” id. ¶ 71; “were damaged in the amount they paid to obtain
`Polar Ginger Ale,” id. ¶ 75. The economic loss doctrine generally bars
`recovery for certain tort and warranty claims “in the absence of personal
`injury or property damage.” See Dill v. Am. Home Mortg. Servicing, Inc.,
`935 F. Supp. 2d 299, 303 (D. Mass. 2013); FMR Corp. v. Boston Edison Co.,
`415 Mass. 393, 395 (1993) (affirming summary judgment in favor of
`defendant on negligence and breach of express and implied warranty claims
`where plaintiff’s damages were solely economic). “Essentially, where the
`negligent design or construction of a product leads to damage only to the
`product itself, the recovery for economic loss is in contract, and the economic
`loss rule bars recovery in tort.” Wyman v. Ayer Properties, LLC, 469 Mass.
`64, 69 (2014); Cruickshank v. Clean Seas Co., 346 B.R. 571, 582 (D. Mass.
`2006) (“Unless the plaintiffs are able to show that they sustained personal
`injury or damage to other property, the economic loss doctrine bars their
`claims for negligence and breach of implied warranties.”); see also Canal
`Elec. Co. v. Westinghouse Elec. Co., 973 F.2d 988, 998 (1st Cir. 1992)
`(Breyer, C.J.).
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`11
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`Metro. Life Ins. Co. v. Cotter, 464 Mass. 623, 644 (2013) (“The benefit must
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`be unjust, a quality that turns on the reasonable expectations of the
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`parties.”). As Polar made no actionable misrepresentation to Fitzgerald, the
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`retention of the purchase price cannot be found to be unjust. Count V will
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`also be dismissed.
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`Count VI
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`In Count VI, which is brought under the Massachusetts Consumer
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`Protection Act, popularly known as Chapter 93A, Fitzgerald asserts that
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`Polar’s MADE FROM REAL GINGER label is “false and [Polar] knew that
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`the representations were false when they made them.” Compl. ¶¶ 77-78.
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`“Whether conduct is deceptive is initially a question of fact.” Aspinall, 442
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`Mass. at 394. However, “[i]t is [also] well settled that a court may determine
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`as a matter of law that an allegedly deceptive advertisement would not have
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`misled a reasonable consumer.” Fink v. Time Warner Cable, 714 F.3d 739,
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`741 (2d Cir. 2013). In Dumont, the product packaging case previously
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`alluded to as bearing some resemblance to Fitzgerald’s Complaint, the First
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`Circuit majority found it misleading to advertise coffee with the promise of
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`“Hazelnut Crème” when the coffee did not in fact contain hazelnuts (or real
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`12
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`Case 1:20-cv-10877-RGS Document 19 Filed 11/10/20 Page 13 of 14
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`cream). Dumont, 934 F.3d at 40-41.10 In this case, however, the court does
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`not accept as true the conclusory and erroneous allegation that consumers
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`“understand the phrase ‘MADE FROM REAL GINGER’ to mean that Polar’s
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`soft drinks are made using real ginger root . . . and that the consumers who
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`drink the soft drink will receive the health benefits associated with
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`consuming real ginger.” Compl. ¶ 2. As liberally as the consumer statute is
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`meant to be construed, a viable Chapter 93A claim “depends on the likely
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`reaction of a reasonable consumer rather than an ignoramus.”11 Aspinall,
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`442 Mass. at 395; see also Dumont, 934 F.3d at 44 (Lynch, J., dissenting).
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`In other words, any reasonable consumer would know ginger ale for what it
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`is – a carbonated drink with ginger flavoring and probably containing an
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`unhealthy amount of sugar. 12 Nothing about the “made from real ginger”
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`10 Judge Lynch in her dissent makes the compelling point that the
`majority was pegging its test of what a reasonable consumer would think she
`would find in her bag of ground coffee on a simple misunderstanding of the
`meaning of the word “crème,” just as here plaintiff confuses the taste of
`ginger with the root of the generic ginger plant.
`
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`11 See, e.g., Lima v. Post Consumer Brands, LLC, 2019 WL 3802885,
`at *5 (D. Mass. Aug. 13, 2019), reconsideration denied, 2019 WL 4889599
`(D. Mass. Oct. 2, 2019) (“Plaintiffs have not plausibly alleged that the use of
`“Honey” in Honey Bunches of Oats and the associated imagery would have
`misled a reasonable consumer into believing that the cereal was primarily
`or exclusively sweetened with honey.”).
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`12 The Miriam Webster’s Unabridged Dictionary defines ginger ale as
`“a sweetened carbonated nonalcoholic beverage flavored mainly with
`13
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`claim is deceptively untrue and no public policy is served by allowing this
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`matter to percolate further.13
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`ORDER
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`For the forgoing reasons, the Complaint is dismissed, albeit without
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`prejudice.
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`SO ORDERED.
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` /s/ Richard G. Stearns____ _____
`UNITED STATES DISTRICT JUDGE
`
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`https://www.merriam-
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`extract.”
`ginger
`webster.com/dictionary/ginger%20ale (last visited Nov. 10, 2020).
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`13 As well-stated by Judge Lynch in her dissent in Dumont, “[i]mposing
`on food producers the costs of defending meritless labeling litigation will
`have the [undesirable] effect of driving up prices for consumers.” 934 F.3d
`at 47.
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`
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`14
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