Case: 20-15742, 11/23/2020, ID: 11903309, DktEntry: 33, Page 1 of 30
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`20-15742
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`IN THE
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`d
`
`United States Court of Appeals
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`FOR THE NINTH CIRCUIT
`
`
`IN RE: COCA-COLA PRODUCTS MARKETING
`AND SALES PRACTICES LITIGATION (NO. II)
`
`GEORGE ENGURASOFF; JOSHUA OGDEN; PAUL MERRITT;
`YOCHEVED LAZAROFF; RACHEL DUBE; RONALD SOWIZROL;
`MICHELLE MARINO; THOMAS WOODS,
`Plaintiffs-Appellees,
`
`—v.—
`
`COCA-COLA REFRESHMENTS USA, INC.; THE COCA-COLA COMPANY;
` BCI COCA-COLA BOTTLING COMPANY; COCA COLA BOTTLING
`COMPANY OF SONORA, CALIFORNIA, INC.,
`
`Defendants-Appellants.
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`REPLY BRIEF FOR DEFENDANTS-APPELLANTS
`
`STEVEN A. ZALESIN
`JANE METCALF
`KADE N. OLSEN
`PATTERSON BELKNAP WEBB
`& TYLER LLP
`1133 Avenue of the Americas
`New York, New York 10036
`(212) 336-2000
`
`Attorneys for Defendants-Appellants
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`

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`TABLE OF CONTENTS
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`Page
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`2.
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`B.
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`C.
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`TABLE OF AUTHORITIES .................................................................................... ii
`INTRODUCTION ..................................................................................................... 1
`ARGUMENT ............................................................................................................. 3
`I.
`PLAINTIFFS LACK STANDING TO SEEK INJUNCTIVE RELIEF ......... 3
`A.
`Plaintiffs Can Show No Risk Of Future Confusion .............................. 5
`1.
`Davidson Requires A Showing Of Potential Future
`Product Changes To Confer Standing ........................................ 5
`Plaintiffs Cannot Make The Showing Required By
`Davidson ..................................................................................... 9
`Plaintiffs Face No Risk Of Injury Because The Disputed
`Product Feature Does Not Matter To Them ........................................ 13
`Plaintiffs Cannot Establish That Any Claimed Injury Is
`Imminent ............................................................................................. 15
`THE DISTRICT COURT ABUSED ITS DISCRETION IN FINDING
`COMMONALITY ......................................................................................... 18
`CONCLUSION ........................................................................................................ 22
`CERTIFICATE OF COMPLIANCE ....................................................................... 24
`CERTIFICATE OF SERVICE ................................................................................ 25
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`II.
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`
`
`i
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`Adams v. Starbucks Corp.,
`No. 20-cv-00225, 2020 U.S. Dist. LEXIS 131380 (C.D. Cal. July
`9, 2020) ................................................................................................................. 7
`Bassett v. ABM Parking Services, Inc.,
`883 F.3d 776 (9th Cir. 2018) .............................................................................. 14
`Berni v. Barilla S.p.A.,
`964 F.3d 141 (2d Cir. 2020) ................................................................................. 8
`Bruton v. Gerber Products Co.,
`No. 15-15174, 2017 U.S. App. LEXIS 12833 (9th Cir. July 17,
`2017) ................................................................................................................... 20
`Clapper v. Amnesty Int’l USA,
`568 U.S. 398 (2013) ...................................................................................... 16, 17
`Conrad v. Boiron, Inc.,
`869 F.3d 536 (7th Cir. 2017) ................................................................................ 9
`Davidson v. Kimberly-Clark Corp.,
`889 F.3d 956 (9th Cir. 2018) .......................................................................passim
`Dutta v. State Farm Mutual Automobile Insurance Co.,
`895 F.3d 1166 (9th Cir. 2018) ............................................................................ 14
`Ellis v. Costco Wholesale Corp.,
`657 F.3d 970 (9th Cir. 2011) .............................................................................. 19
`Lanovaz v. Twinings N. Am., Inc.,
`726 F. App’x 590 (9th Cir. 2018) ................................................................. 16, 17
`Lilly v. Jamba Juice Co.,
`No. 13-cv-02998, 2015 U.S. Dist. LEXIS 34498 (N.D. Cal. Mar.
`18, 2015) ............................................................................................................... 8
`
`
`
`ii
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`

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`TABLE OF AUTHORITIES
`(CONTINUED)
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`Page(s)
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`Nguyen v. Lotus by Johnny Dung Inc.,
`No. 17-cv-1317, 2019 U.S. Dist. LEXIS 78033 (C.D. Cal. Jan. 7,
`2019) ................................................................................................................... 17
`Lujan v. Defenders of Wildlife,
`504 U.S. 555 (1992) ............................................................................................ 14
`McNair v. Synapse Grp. Inc.,
`672 F.3d 213 (3d Cir. 2012) ................................................................................. 9
`Moore v. Mars Petcare US, Inc.,
`966 F.3d 1007 (9th Cir. 2020) .................................................................. 9, 13, 14
`Nelsen v. King County,
`895 F.2d 1248 (9th Cir. 1990) ........................................................................ 3, 10
`Perez v. Nidek Co.,
`711 F.3d 1109 (9th Cir. 2013) ............................................................................ 20
`Pizana v. Sanmedica Int’l LLC,
`No. 18-cv-00644, 2019 U.S. Dist. LEXIS 169372 (E.D. Cal. Sep.
`30, 2019) ............................................................................................................... 8
`Prescott v. Bayer Healthcare LLC,
`No. 20-cv-00102, 2020 U.S. Dist. LEXIS 136651 (N.D. Cal. July
`31, 2020) ............................................................................................................... 7
`Smith v. Keurig Green Mountain,
`No. 18-cv-06690, 2020 U.S. Dist. LEXIS 172826 (N.D. Cal. Sep.
`21, 2020) ............................................................................................................... 7
`Spokeo, Inc. v. Robins,
`136 S. Ct. 1540 (2016) ........................................................................................ 14
`Tucker v. Post Consumer Brands, LLC,
`No. 19-cv-3993, 2020 U.S. Dist. LEXIS 71090 (N.D. Cal. Apr. 21,
`2020) ................................................................................................................... 11
`iii
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`TABLE OF AUTHORITIES
`(CONTINUED)
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`Page(s)
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`Wal-Mart Stores, Inc. v. Dukes,
`564 U.S. 338 (2011) ................................................................................ 18, 19, 20
`Walker v. Life Ins. Co. of the Sw.,
`953 F.3d 624 (9th Cir. 2020) .............................................................................. 19
`Wisdom v. Easton Diamond Sports, LLC,
`No. 18-cv-4078, 2019 U.S. Dist. LEXIS 24500 (C.D. Cal. Feb. 11,
`2019) ................................................................................................................... 17
`Rules
`Federal Rule of Civil Procedure 23 ..................................................................passim
`Other Authorities
`Shari S. Diamond, Reference Guide on Survey Research, in Reference
`Manual on Scientific Evidence (3d ed. 2011) ..................................................... 21
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`iv
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`INTRODUCTION
`To uphold the district court’s certification of a Rule 23(b)(2) class, this Court
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`must conclude that, absent an injunction, Plaintiffs will face imminent harm from
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`Coca-Cola’s purported mislabeling of Coke. Yet in their opposition, Plaintiffs fail
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`to explain how they could possibly be deceived by Coke’s labels in the future. Plain-
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`tiffs well know that Coke contains phosphoric acid, a substance they firmly (albeit
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`mistakenly) believe acts as an artificial flavor and preservative in the beverage. As
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`the district court found, phosphoric acid has been a “mainstay” of the iconic Coke
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`formula for more than a century, and that is not apt to change. In the unlikely event
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`that Coca-Cola were to remove phosphoric acid, that modification would be readily
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`apparent from Coke’s ingredient list. In short, an injunction would not protect the
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`named Plaintiffs from future deception, because no risk of future deception exists.
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`They thus lack standing to seek injunctive relief.
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`Misreading this Court’s opinion in Davidson v. Kimberly-Clark Corp., 889
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`F.3d 956 (9th Cir. 2018), Plaintiffs argue that they have standing so long as they can
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`show an inability to “rely on” Coke’s label to “confirm” what they already believe
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`to be true. That is not what Davidson holds. There, this Court recognized that pre-
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`sent knowledge of a statement’s falsity may not equate to future knowledge of its
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`falsity if the relevant facts (e.g., whether a manufacturer’s wipes are truly “flusha-
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`ble”) could change. That is not the situation here: Coca-Cola has used phosphoric
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`1
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`acid to add tartness and acidity to Coke since 1886, and there is no prospect of a
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`reformulation that could alter that reality. Plaintiffs thus do not face the risk this
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`Court identified in Davidson, i.e., the inability to determine whether the product in
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`question has been “improved” in such a way as to render the disputed label claim
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`truthful. They have no need to “rely” on the label because they already have full
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`knowledge of the static facts. Indeed, if “ability to rely” were the Article III test,
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`every consumer would automatically have standing to seek an injunction against any
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`label she alleged to be false or misleading. That is not what Davidson stands for, or
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`what Article III permits.
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`Plaintiffs here lack standing for the additional reason that—like most consum-
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`ers of Coke—their purchasing decisions do not turn on the presence or role of phos-
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`phoric acid in the beverage. Some of the named Plaintiffs have continued to buy
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`Coke even after they came to believe it contains an artificial flavor or preservative.
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`Others have said they would “consider” buying Coke in the future not if it were
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`reformulated to remove such substances, but if it were “properly labeled” to comport
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`with their understanding of FDA rules. No Plaintiff in either group faces a cogniza-
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`ble risk of future harm.
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`Finally, Plaintiffs offer no sound defense of the district court’s conclusion
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`concerning the Rule 23(a) “commonality” requirement for class certification. Plain-
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`tiffs do not dispute that the court below credited mere arguments, rather than
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`2
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`conducting the rigorous analysis Rule 23(a) requires. And their post hoc efforts to
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`cobble together a basis for the district court’s decision do not pass the red face test.
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`The district court’s class certification ruling should be reversed.
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`I.
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`ARGUMENT
`PLAINTIFFS LACK STANDING TO SEEK INJUNCTIVE RELIEF
`At the class certification stage, the “burden of showing a likelihood” of future
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`harm “is firmly on the plaintiff,” who must provide an “individualized showing that
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`there is a very significant possibility that the future harm will ensue.” Nelsen v. King
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`County, 895 F.2d 1248, 1250-52 (9th Cir. 1990) (alterations omitted). Plaintiffs
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`cannot satisfy that standard, for three independent reasons.
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`First, Plaintiffs have identified no evidence that they are in jeopardy of being
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`deceived in the future by Coke’s label. This Court held in Davidson that a plaintiff
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`may face a risk future confusion when her “[k]nowledge that [an] advertisement or
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`[product] label was false in the past” does not “equate to knowledge that it will re-
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`main false” in the future. 889 F.3d at 969. The linchpin of that holding was the
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`realistic prospect of some change in a product’s characteristics or formulation that
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`could impact the veracity of the subject label statement. Knowledge of past falsity
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`does equate to knowledge of future falsity—unless the product itself is apt to change.
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`Without that possibility, a plaintiff who has learned that a label statement is inaccu-
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`rate is immune from being deceived by the same statement again.
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`3
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`There is no such realistic prospect of a formulation change here. Plaintiffs
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`know that Coke contains phosphoric acid, and they know what phosphoric acid does:
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`it adds tartness and acidity to the beverage. As the district court found, there is no
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`likelihood this will ever change. Specifically, there is zero prospect that Coca-Cola
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`will one day either (a) remove phosphoric acid from Coke (which would be readily
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`apparent to Plaintiffs in any event, because phosphoric acid would disappear from
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`the product’s ingredient list); or (b) somehow alter the function phosphoric acid per-
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`forms (which Plaintiffs firmly believe meets FDA’s definitions of “artificial flavor”
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`and “preservative”). Accordingly, Plaintiffs face no risk of future confusion about
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`phosphoric acid’s presence or role in Coke.
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`Second, even if Plaintiffs were at risk of such confusion, they would not be at
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`risk of future injury. All nine named Plaintiffs have admitted that neither the pres-
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`ence nor function of phosphoric acid has any impact on their willingness to purchase
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`Coke. Instead, they seek injunctive relief to assure themselves that Coke is “properly
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`labeled.” That abstract interest in Coca-Cola’s compliance with the law is insuffi-
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`cient to establish an injury under Article III. If that were enough, there would be
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`virtually no limits on standing.
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`Finally, these issues aside, none of the Plaintiffs here is at risk of imminent
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`injury, as required to pursue injunctive relief. Most have not committed to any sce-
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`nario in which they would purchase Coke—even if they could be certain of the
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`4
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`lawfulness of its labeling. The most any of them can say is that they would “con-
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`sider” buying Coke again if Coca-Cola were forced to alter the label. Others admit
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`that they still purchase Coke, despite their belief that its label is unlawful. By defi-
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`nition, neither group is at risk of suffering any imminent harm in the absence of
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`injunctive relief.
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`A.
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`Plaintiffs Can Show No Risk Of Future Confusion
`1.
`Davidson Requires A Showing Of Potential Future Product
`Changes To Confer Standing
`Plaintiffs devote much of their opposition to urging this Court to disregard the
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`district court’s finding that Coke’s formula has contained phosphoric acid for more
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`than 100 years, and that this is vanishingly unlikely to change—leaving Plaintiffs at
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`little risk of future confusion. They contend that they need not demonstrate the pro-
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`spect of any future change to Coke to establish standing, because Davidson held that
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`“not being able to rely on [a product’s] labels” constitutes an “imminent or actual
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`harm.” 889 F.3d at 967. According to Plaintiffs, whether they are at actual risk of
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`future confusion about Coke’s composition is irrelevant. So long as they claim that
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`Coke’s label is “unreliable,” Plaintiffs argue, they have standing to seek injunctive
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`relief.
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`Neither Davidson nor any other authority supports this argument. Davidson
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`held that the plaintiff had standing because her “[k]nowledge that the . . . label was
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`false in the past” did not “equate to knowledge that it w[ould] remain false,” because
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`5
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`the relevant product feature could change. 889 F.3d at 969 (emphasis added). The
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`Davidson plaintiff claimed that she would be interested in purchasing the defend-
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`ant’s wipes if they were reformulated to be truly “flushable.” But because the de-
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`fendant had allegedly labeled the wipes as “flushable” when they were not, she could
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`not know in the future whether that statement reflected a product improvement or
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`more of the same deception that had prompted her lawsuit. Absent an injunction
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`prohibiting the defendant from labeling its wipes flushable unless they truly were,
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`she remained at risk of confusion.
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`The Court in Davidson reasoned that this lack of access to reliable information
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`about changes to the product could harm the plaintiff in two ways: (1) “she will be
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`unable to rely on the product’s advertising or labeling in the future, and so will not
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`purchase the product although she would like to”; or (2) “she might purchase the
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`product in the future” because she may “reasonably but incorrectly assume the prod-
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`uct was improved.” 889 F.3d at 969-70. Whether those two scenarios were intended
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`as “exclusive” or not, the Court made clear that the plaintiff’s injury flowed from
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`the prospect of future changes to the product. Id. If not for that possibility, the
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`plaintiff would be at no risk of future confusion, because she could avoid the defend-
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`ant’s wipes based on her understanding that they were not “flushable.”
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`Plaintiffs argue that requiring such a showing in false advertising or labeling
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`cases would “render Rule 23(b)(2) a near-dead letter.” Answering Br. at 2. But
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`6
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`Plaintiffs’ own authorities demonstrate otherwise. Numerous courts applying
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`Davidson have allowed consumers to pursue injunctive relief based on the plausible
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`possibility of a future product change. Among these is Smith v. Keurig Green
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`Mountain, the case cited in Plaintiffs’ preliminary statement. Answering Br. at 4.
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`There, the court concluded that the plaintiffs had standing to seek an injunction
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`against the coffee maker’s claim that its pods were recyclable because “Keurig could
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`plausibly make recyclable Pods without changing their size” in the future. Absent
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`an injunction, the plaintiff would have no way of knowing whether such an
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`improvement had occurred. No. 18-cv-06690, 2020 U.S. Dist. LEXIS 172826, at
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`*32 (N.D. Cal. Sep. 21, 2020).
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`Other cases cited by Plaintiffs apply the same reasoning. See Prescott v.
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`Bayer Healthcare LLC, No. 20-cv-00102, 2020 U.S. Dist. LEXIS 136651, at *16-
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`17 (N.D. Cal. July 31, 2020) (finding that plaintiff had standing to pursue injunctive
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`relief where, absent an injunction, she would have “no way of knowing whether, for
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`example, Defendants will change the formula for the [product]” (emphasis added));
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`Adams v. Starbucks Corp., No. 20-cv-00225, 2020 U.S. Dist. LEXIS 131380, at *21
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`(C.D. Cal. July 9, 2020) (finding that plaintiff had standing to pursue injunctive relief
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`where she could “reasonably, but incorrectly, assume the product was improved”
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`(emphasis added)). The same is true of the cases cited in Coca-Cola’s opening brief.
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`7
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`Opening Br. at 20-21.1 Each of these cases demonstrates that some prospect of a
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`future product change is necessary for a consumer plaintiff to establish a threat of
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`ongoing injury.
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`While Plaintiffs suggest that this requirement is unduly stringent, the standard
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`under Davidson is already the most permissive applied by any Circuit to have
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`considered the question. Recently, in Berni v. Barilla S.p.A., 964 F.3d 141 (2d Cir.
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`2020), the Second Circuit held that plaintiffs who claimed to be previously deceived
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`by a product’s label categorically lacked standing to seek injunctive relief. The court
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`reasoned that consumers who have “been deceived by the product’s packaging once”
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`by definition “will not again” be duped, because they can make future purchases
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`“with exactly the level of information that they claim they were owed from the
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`beginning.” Id. at 148. For that reason, the court held, an injunction could “not
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`materially improve their position as knowledgeable consumers.” Id. Other courts
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`1 Plaintiffs’ pot shots at Coca-Cola’s authorities get them nowhere. In each case, the
`district court’s analysis turned on whether the plaintiffs plausibly alleged (at the
`pleading stage) or demonstrated (at the class certification stage) that the product’s
`make-up was likely to change. E.g., Lilly v. Jamba Juice Co., No. 13-cv-02998,
`2015 U.S. Dist. LEXIS 34498, at *11-13 (N.D. Cal. Mar. 18, 2015) (plaintiff was
`“likely to be injured in the future” because, although the defendant could “change
`or reconstitute its product,” the “consumer won’t know whether the label is accu-
`rate” (emphasis added)); Pizana v. Sanmedica Int’l LLC, No. 18-cv-00644, 2019
`U.S. Dist. LEXIS 169372, at *32 (E.D. Cal. Sep. 30, 2019) (plaintiff had standing
`to seek an injunction against a label on a health supplement when the product might
`be “reworked to produce its advertised benefits”).
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`8
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`of appeal have reached the same conclusion. E.g., Conrad v. Boiron, Inc., 869 F.3d
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`536, 542 (7th Cir. 2017) (plaintiff lacked standing for injunctive relief when he
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`became “fully aware” of the ingredients in a product); McNair v. Synapse Grp. Inc.,
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`672 F.3d 213, 224-26 (3d Cir. 2012) (rejecting as a “wholly conjectural” previously
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`misled plaintiffs’ allegations that “they may, one day, become [the defendant’s]
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`customers once more”). Dispensing with Davidson’s already-permissive standard
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`and allowing essentially any consumer to seek injunctive relief, as Plaintiffs urge,
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`would render this Court an extraordinary outlier among its sister Circuits.
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`In short, while Davidson did not render Rule 23(b)(2) a “near-dead letter,” it
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`did require plaintiffs to show some prospect of a future product change in order to
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`pursue injunctive relief. Without that showing, a plaintiff cannot establish that she
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`is at any risk of future confusion from the disputed labeling.2
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`2.
`Plaintiffs Cannot Make The Showing Required By Davidson
`Applying these principles here, Plaintiffs are at no risk of future confusion
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`about the presence or function of phosphoric acid in Coke. They are well aware that
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`Coke contains phosphoric acid, a substance they regard as an artificial flavor and
`
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`2 The footnote in Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1021 n.13 (9th
`Cir. 2020), on which Plaintiffs fixate, did not implicitly endorse their theory of stand-
`ing. As in Davidson, the Court explained that “a previously deceived consumer may
`have standing to seek an injunction against false advertising or labeling,” provided
`there is a risk of future injury. Id. (emphasis added). Here, there is none.
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`9
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`preservative. Answering Br. at 9-10. And that is not apt to change. As the district
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`court found, the notion that Coca-Cola might one day “remove phosphoric acid as
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`one of Coke’s ingredients” is “speculative or conjectural.” ER 10. Should Plaintiffs
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`ever find themselves uncertain about whether Coke still contains phosphoric acid,
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`they can resolve such doubts by consulting the product’s ingredient list. Accord-
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`ingly, Plaintiffs are at no risk of buying Coke, or refraining from doing so, because
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`they are confused about the presence of phosphoric acid in the product.3
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`Plaintiffs protest that the district court’s finding that phosphoric acid is un-
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`likely to vanish from Coke was “premature.” Had they been afforded more discov-
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`ery, Plaintiffs theorize, they might have uncovered a plot to change Coke’s 134-year-
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`old formula. Answering Br. at 31. This is speculation in the extreme. To satisfy
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`their obligations under Article III, Plaintiffs must identify “a very significant possi-
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`bility that the future harm will ensue” absent injunctive relief. Nelsen, 895 F.2d at
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`1250. Plaintiffs’ bald assertion that it is “impossible to know” whether “Coca-Cola
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`will change Coke’s formula,” Answering Br. at 28, does not suffice. And it is in-
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`consequential in any event because, as noted above, any decision to remove phos-
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`phoric acid would be readily apparent from the ingredient list.
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`3 As noted above, no one—not even Plaintiffs—has suggested that Coca-Cola might
`continue to include phosphoric acid, yet somehow alter its function in Coke.
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`10
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`Plaintiffs’ retort that the “onus” should not be on them “to consult the ingre-
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`dient list” is unpersuasive. Answering Br. at 26-27 (citing Tucker v. Post Consumer
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`Brands, LLC, No. 19-cv-3993, 2020 U.S. Dist. LEXIS 71090 (N.D. Cal. Apr. 21,
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`2020)). Cases like Tucker do not address the question of whether a particular con-
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`sumer might be deceived again in the future once she has learned of a product’s
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`contents. They address the separate issue whether a labeling statement can be ob-
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`jectively misleading despite a clarifying disclosure in an ingredient list. Id. The
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`question here is not whether the Coke label is objectively misleading, but whether it
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`will imminently mislead these particular Plaintiffs. There is no evidence of any
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`kind that it will.
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`Plaintiffs’ only response is to echo the district court’s observation that even if
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`they can verify the presence of phosphoric acid in Coke by consulting the ingredient
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`list, they cannot determine its function, “which is disputed and which is not readily
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`apparent from the labels themselves.” ER 12; see Answering Br. at 20-21. That
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`misstates the issue. The function of phosphoric acid—which is known to Plaintiffs
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`and is not disputed—is to impart acidity and tartness. See Answering Br. at 7. Plain-
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`tiffs say this makes it an artificial flavor and preservative under FDA regulations;
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`Coca-Cola says otherwise. But this is a legal or regulatory question—not an issue
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`on which Plaintiffs require additional information in order to make rational purchas-
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`ing decisions. Put another way, Plaintiffs cannot explain how an injunction would
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`force Coca-Cola to make, or refrain from making, any labeling statement that could
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`impact their choice whether to buy Coke in the future.
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`At bottom, Plaintiffs know that:
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` Coke contains phosphoric acid;
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` The phosphoric acid in Coke is artificially derived; and
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` It imparts acidity and tartness to Coke.
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`Whether these facts support a legal conclusion that Coke contains an “artificial fla-
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`vor” or “preservative” is irrelevant to the question of whether the named Plaintiffs
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`have a bona fide need for injunctive relief. Plaintiffs are fully aware of the facts,
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`and the facts will not change. Plaintiffs therefore are not at risk of future deception,
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`and lack standing to pursue an injunction.4
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`4 As a fallback, Plaintiffs speculate that, for all they know, “other” ingredients in
`Coca-Cola may turn out to be mislabeled as well—a prospect they have never raised
`in seven years of litigation in the district court. Answering Br. at 31. This belated
`assertion only underscores Plaintiffs’ inability to articulate any imminent injury. If
`Plaintiffs believed that “other” aspects of Coke’s labeling were misleading, they
`should have alleged as much and sought appropriate relief. The relief they seek here,
`which would affect only Coke’s labeling of phosphoric acid, will not resolve their
`vague suspicions about unspecified “other” aspects of the label. By the same token,
`those groundless suspicions cannot justify the requested relief when their actual al-
`legations do not.
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`B.
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`Plaintiffs Face No Risk Of Injury Because The Disputed Product
`Feature Does Not Matter To Them
`Even if a change to Coke’s formulation were a real possibility, and even if
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`Plaintiffs were at any risk of confusion about the presence or function of phosphoric
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`acid in Coke, they would lack standing for a separate and independent reason: they
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`have admitted that this feature of Coke does not matter to their purchasing decisions.
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`Plaintiffs do not claim that they wish to avoid Coke so long as it contains an artificial
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`flavor or preservative, or to purchase Coke again if that changes. Rather, as they
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`told the district court and have reiterated on appeal, their request for injunctive relief
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`is rooted in their desire to ensure that Coke is “properly labeled.” Answering Br. at
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`20; see also ER 12-14. Once they are satisfied that the label complies with
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`applicable regulations, Plaintiffs will “consider purchasing Coke in the future”—
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`even if everything else about the product stays the same. ER 12-14, 31-41.
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`This academic interest in the “propriety” of Coke’s labeling is not an
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`imminent injury. In the cases Plaintiffs cite, consumers complained that their
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`inability to rely on product labeling injured them by depriving them of information
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`that actually mattered to their purchasing decisions. In Davidson, for example, the
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`plaintiff cared whether defendant’s “flushable” labeling was accurate, because she
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`considered flushable wipes “easier and more sanitary” and did not wish to purchase
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`non-flushable ones. 889 F.3d at 971. And in Moore, the plaintiffs cared whether
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`the defendants’ pet food truly offered medicinal benefits without a prescription,
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`because they planned to purchase food for their sick animals. 966 F.3d at 1014-15.
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`In both cases, the inability to rely on the disputed labeling hindered the plaintiffs’
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`efforts to select and purchase products with the features they wanted.
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`Plaintiffs here face no such hindrance. They do not claim to be interested in
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`purchasing a soft drink without phosphoric acid, or even a soft drink without
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`artificial flavors or preservatives. See ER 31-41. They seek only the satisfaction of
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`knowing that the soft drink they are purchasing is “properly labeled.”
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`That purported interest, if sufficient, would give everyone on the planet
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`Article III standing to challenge every allegedly false label. A litigant would simply
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`have to declare: “I would consider purchasing this product if its labeling complied
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`with my understanding of FDA regulations.” As set forth in Coca-Cola’s opening
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`brief, it is axiomatic that a generalized interest in compliance with the law is not a
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`particularized injury sufficient to confer standing. In Lujan v. Defenders of Wildlife,
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`504 U.S. 555, 573 (1992), the U.S. Supreme Court rejected as insufficient “an
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`abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the
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`procedures required by law.” That same logic applies to disputes between private
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`parties: a defendant’s “bare procedural violation” of a federal statute cannot “satisfy
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`the demands of Article III.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549-50 (2016).
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`This Court applied this principle in rejecting the plaintiffs’ theories of injury in
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`Bassett v. ABM Parking Services, Inc., 883 F.3d 776 (9th Cir. 2018), and Dutta v.
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`State Farm Mutual Automobile Insurance Co., 895 F.3d 1166 (9th Cir. 2018). The
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`result can be no different here.
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`Plaintiffs’ effort to distinguish these cases only highlights their inability to
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`articulate any concrete injury. According to Plaintiffs, they do not allege a “bare
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`procedural harm” because “the class will not be able to rely on Coke’s labeling for
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`any changes that may occur,” Answering Br. at 36 n. 8, and they “continu[e] to be
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`misled as to the nature of Coke’s ingredients.” Id. at 34 (emphases added). But
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`that puts Plaintiffs back at square one. To articulate anything more than a “bare
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`procedural harm,” Plaintiffs admit they must proffer some evidence that (1)
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`“changes [] may occur” to Coke’s formula, and (2) they “conti