The Ninth Circuit recently decertified a class of consumers claiming Coca-Cola falsely labelled its drinks as having no artificial flavors when they contain phosphoric acid. In re Coca-Cola Prod. Mktg. & Sales Pracs. Litig. (No. II), No. 20-15742, 2021 WL 3878654, at *1 (9th Cir. Aug. 31, 2021). Plaintiffs had sought injunctive relief, and the court of appeals concluded they lacked standing to bring such a claim. Accordingly the court did not need to reach the further argument that plaintiffs have no risk of injury because Coke’s ingredients appear on the label. Yes, dear readers, another case which common sense might tell you a consumer’s “relief” if they don’t like an ingredient, is to read the label, see the ingredient, and buy something else. What are labels for anyway? Coke of course is the iconic flagship brand of a company that started in 1886 and has grown to encompass more than 500 brands with over 700,000 people at work.
“To establish injury in fact [for Article III standing], a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021). Although one would think that a consumer who knew enough about an allegedly falsely labeled product to bring a federal lawsuit ought to know enough not to be injured by it in the future, the Ninth Circuit has identified examples of threatened future harm a consumer complaining of assertedly false labeling might plausibly allege: “she will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product although she would like to” and “she might purchase the product in the future, despite the fact it was once marred by false advertising or labeling, as she may reasonably, but incorrectly, assume the product was improved.”
However attenuated, dare we say artificial, those examples may be, here none of the plaintiffs alleged a desire to purchase Coke as advertised, that is, free from what they believe to be artificial flavors or preservatives, nor did they allege in any other fashion a concrete, imminent injury. Instead, as plaintiffs explained in their brief, they had merely “stated that if Coke were properly labeled, they would consider purchasing it.” Under governing law, such an abstract interest in compliance with labeling requirements is insufficient, standing alone, to establish Article III standing. See Spokeo, 136 S. Ct. at 1550. Moreover, the imminent injury requirement is not met by alleging that the plaintiffs would consider purchasing Coke.
Two of the class reps testified in fact that they were not concerned with phosphoric acid, but rather with whether Coca-Cola was in their view “telling the truth” on its product’s labels. (Forgetting about the pesky ingredients list.) Both asserted that they would be interested in purchasing Coke again if its labels were “accurate,” regardless of whether it contained chemical preservatives or artificial flavors. A plaintiff cannot satisfy the demands of Article III by alleging a bare procedural violation. Spokeo, 136 S. Ct. at 1550. And such an asserted informational injury that causes no adverse effects cannot satisfy Article III.