Proposed Vitaminwater Settlement Leaves Sour Aftertaste

UPDATE 3/21/16: The settlement was approved despite the objection by TINA.org and others. 

Coca-Cola will be temporarily tweaking the labels of its vitaminwater drink to reflect its sugary content under a proposed settlement of a lawsuit filed in part by lawyers from the Center for Science in the Public Interest (CSPI).  It will also temporarily stop making certain claims relating to health benefits.

But the proposed settlement isn’t such a sweet deal for consumers and TINA.org has filed a friend of the court brief opposing it. Here are some issues with the settlement as is:

• The only change the company would have to make is the addition of the words “with sweeteners” on two panels of the product’s labeling. And it would have 24 months to implement the change and only would have to keep it on the label for three years. That means consumers may only see this crucial reference to the sugar content — the drink contains more than 30 grams of sugar, which is more than many standard-sized candy bars — for a year.
• The other labeling “changes” listed in the settlement agreement have already been made by the company, though Coca-Cola did admit it would not have made the changes if it weren’t for the pending litigation.
• Consumers who were duped into buying the beverage thinking it was healthy will not receive any compensation, but the attorneys who brought the case will receive $2.73 million. The blame for this one rests on the court, which denied plaintiffs the right to seek money damages. (The silver lining, if you can call it so, is that consumers aren’t precluded from suing Coca-Cola to obtain compensation if they’re up for that kind of challenge.)
• But while consumers could sue for money damages, consumers in the class would have to forever give up their right to bring a new lawsuit against the company that would seek changes to the labeling and marketing of vitaminwater — even though the changes are just temporary under the agreement and consumers weren’t made aware of that in the notice of the settlement.
• While vitaminwater would have to continue to keep 10 specific claims off its labels for 10 years that reference supposed health benefits of the drink — such as “vitamins + water = all you need” and “specifically formulated with nutrients required for optimal functioning of the immune system …” — it is not prohibited from rewording the phrases to fashion similar claims.
• The notice used to inform class members about the settlement does not tell them that the label changes are temporary.

The federal suit that was filed in 2009 alleged that Coca-Cola was misleading consumers by marketing vitaminwater as healthy.

Specifically, the lawsuit took issue with Coca-Cola’s claims that vitaminwater could help reduce the risk of eye disease, promote healthy joints, and support immune function when, in reality, the huge amount of sugar in the product promotes obesity, diabetes, and other health problems.

Numerous other class-action attorneys jumped on the bandwagon after the 2009 suit and filed actions against Coca-Cola in various states, including Ohio, Florida, Illinois, Missouri and the Virgin Islands, making similar allegations. (These five cases were consolidated in Ohio federal court.)

Last October, TINA.org filed court papers objecting to a settlement in the consolidated cases that awarded the attorneys who brought the suits $1.2 million, gave nothing to consumers who bought the drink under the mistaken impression from the marketing that it was a healthy alternative to soda, and didn’t remedy the deceptive labeling and marketing of vitaminwater. CSPI also objected, on different grounds, but the judge approved the settlement in March.

A final fairness hearing on the proposed settlement is scheduled for Feb. 26.

For more on TINA.org’s legal efforts on vitaminwater click here.