Bad News for Wrigley & Coke

Posted By elissa on Jul 27, 2010 | 2 comments

Wrigley and Coca Cola are just two of the food companies experiencing legal setbacks in their efforts to capitalize on the functional food trend.

First up, Coke recently lost its bid to have the CSPI-backed, class action suit against Vitamin Water dismissed. According to NutraIngredients-USA:

Coca-Cola is to face a lawsuit challenging the health claims on its Vitaminwater drinks, after a US federal judge denied the firm’s request to have the lawsuit dismissed.

In a 55-page opinion issued last week, Judge John Gleeson of the US District Court in New York agreed to dismiss three of the thirteen claims brought against Coca-Cola, but said the remaining claims must still be examined in court. These include allegations of misleading advertising, fraudulent business acts and unfair methods of competition.

…The opinion, available here, highlights what is known as the ‘jelly bean rule’, which restricts the use of health claims – or implied claims of healthiness – to foods that meet certain minimum nutrient levels.

“The potential for confusion is heightened by the presence of other statements in vitaminwater’s labeling, such as the description of the product as a ‘vitamin enhanced water beverage’ and the phrases ‘vitamins + water = all you need’ and ‘vitamins+water = what’s in your hand’ which have the potential to reinforce a consumer’s mistaken belief that the product is comprised of only vitamins and water,” writes Judge Gleeson.

Just goes to show you how slooooow the wheels of justice can turn, though.  I first wrote about this case in January, 2009.  At this rate, I doubt there will be any sort of final judgement (or settlement) before 2012… but I guess we’ll see.

Wrigley, on the other hand, has settled in the class-action suit filed against the company over its claims for added magnolia bark extract.  It’s gonna cost ’em $7 million.

Mars-owned Wrigley will pay consumers up to $7m after settling a class action that challenged its right to claim its Eclipse gum was, “scientifically proven to help kill the germs that cause bad breath”.

Wrigley agreed to set up a fund of $6m (with another $1m added if needed) with consumers able to claim $10 each if they could qualify purchases of the magnolia bark extract-fortified gum.

…Wrigley conducted a trial published in the Journal of Agricultural and Food Chemistry in 2007 that showed magnolia bark extract removed about 20 times more of the germs that cause bad breath within half an hour than placebo mints.

Actually, I gave Wrigley’s fortified gum a try, and thought it really did help a bit in the breath freshening department… so I shan’t be trying to collect my $10.  Still, it’s an “n = 1” observation… when a company wants to make claims for specific health or therapeutic effects, the evidence needs to be extremely tight. As noted by the Nutraingredients article:

New York-based attorney, Marc Ullman, from Ullman, Shapiro, Ullman, added companies needed the highest level of evidence if they were going to make such claims, and that Wrigley had decided it was better to settle than take the matter before a jury.

Amen to that.