The 7UP product line is the latest food or beverage the Center for Science in the Public Interest (CSPI) has sued under its now-familiar model of private enforcement. The 7UP brand is part of the Dr. Pepper Snapple Group Inc.’s (DPSG) stable of consumer products.

The Center for Science in the Public Interest

CSPI is a consumer advocacy organization formed in the 1970s. According to the CPSI website the group’s twin missions are to “conduct innovative research and advocacy programs in health and nutrition, and to provide consumers with current, useful information about their health and well-being.” CSPI underwrites marketing campaigns that address what it consider to be health risks inherent with some consumer foods and beverages.

The CSPI Litigation Project

In 2004, CSPI initiated what it calls its Litigation Project to privately pursue so-called “corporate misbehavior” and fill what the organization perceives as a void left by “inactive government agencies.” CSPI monitors the marketing and content of foods and beverages. The organization then sends demand letters to companies it contends sell unhealthy products or sell products in a misleading manner. Should the demands not yield corrective action, CSPI initiates or joins litigation. CPSI’s current docket features demands made to Nestles, Welch’s Foods, and Amways’s Nutrilite. Current litigation involves complaints against Kellogs, Pepsico, Johnson & Johnson Nutritionals, General Mills, and now, Dr. Pepper Snapple Group, Inc.

The Complaint Against 7UP

Last month, CSPI acting as co-counsel, initiated a putative class action suit claiming consumers were misled about the nutritional qualities and healthfulness of certain 7UP products and that the Dr. Pepper Snapple Group Inc.’s alleged deception caused them to purchase 7UP when they ordinarily would not have done so. The products include “7UP Cherry Antioxidant,” “7UP Mixed Berry Antioxident,’ and “7UP Pomegratite Antioxident” which come in both regular and diet versions. According to the complaint, the packaging and promotion of the products imply that they contain real fruit and that the fruit is the source of antioxidants all of which would distinguish 7UP as more healthful than other carbonated soft drinks. See Complaint. According to the suit, 7UP products contain only fruit flavoring and its only antioxidant content arises from fortification with d-alpha tocopherol acetate, a manufactured form of Vitamin E. The complaint alleges that insofar as the amounts of Vitamin E (15% of RDA) are insufficient to “provide health benefits,” 7UP is indistinguishable from other soft drinks thought to be unhealthy because of their high fructose content, or aspartame component in the case of the diet versions. See Complaint. The 7UP suit was brought under California’s Unfair Competition Law (UCL), codified at California Business and Professions Code § 17200, et seq. This law broadly prohibits “any unlawful, unfair, or fraudulent business act.” The State, local units of government, as well as any person on his or her own behalf or on behalf of the public generally may bring suit under a variety of theories. In the case of 7UP, the complaint claims that the labeling of 7UP is false or misleading and constitutes misbranding under California’s Sherman Law. [Ca. Health & Safety Code §§ 110660, 110765]. The suit also asserts claims for false and misleading advertising under California’s Consumers Legal Remedy Act [Cal. Civ. Code §1750] and under the advertising provisions of the UCL (§17500, et seq.). CSPI has mixed results in similar suits. On the one hand, several consumer products companies (including Cadburry Schwepps which previously owned the 7UP brand) have voluntary dropped or changed advertising claims CSPI has asserted were misleading. On the other hand, CSPI has lost several notable cases including a suit against the manufacture of Arizona Rx Teas—see CSPI Website—and most recently its suit against McDonald’s over the fast food giant’s inclusion of toys in its popular “Happy Meals ”—see Apr. 4, 2012 Order on Demurrers. Sources: David Green, on behalf of himself and all others similarly situated v. Dr. Pepper Snapple Group, Inc., Case No. 12-09567 (C.D. Cal.); Monet Parham, on behalf of herself and those similarly situated vs. McDonald’s Corp. et al., Case No. 10-506178; Superior Court of California, County of San Francisco

This article was prepared by Bob Rouder (rrouder@fulbright.com / 512 536 2491) and Saul Perloff (sperloff@fulbright.com / 210 270 7166) from Fulbright’s False Advertising Practice.