I hope Rab C Nesbitt was one of them.
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If I’m I reading this right. Apparently she’s been using this product for upset stomachs for her kids for years, and I’m assuming with successful outcome or she would have stopped years ago…and suddenly she finds it doesn’t have quite the amount of ginger in it she expected and stops working and she’s suing, right?
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it says 100% Natural Flavour .
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the lawsuit actually states that she bought it believing that it would have the health benefits of ginger, but felt deceived when she found out that it only has ginger flavoring and not actual ginger root. It doesn’t say whether it was beneficial for her kids or not – though any sort of carbonated drink often helps stomach aches, even just plain soda water.
Isn’t a “minuscule amount of a ginger flavor extract” still ginger soda? Anything that isn’t physically a lump of white-yellow root is implicitly at most ginger flavored.
Consumers should probably go for beverages that openly advertises how many grams (17g) of real ginger they contain.
Milkshakes that contain no ice cream, let alone actual milk, are the devil.
Oddly enough, the name has its iconic odd spelling because they were not allowed to use the word “brew” because the drink wasn’t brewed. As the advert above shows, implying that it would give you super powers was absolutely fine.
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A property it shares with parachutes.
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If she had cared at all for her kids, she should have been using Vernor’s all along.
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Let’s not perpetuate this one again, please. This was not a baseless lawsuit.
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There’s no pumpkin in “pumpkin spice”.
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I, for one, am outraged that coca-cola doesn’t containe actual coca.
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Well for fuck’s sake, what am I going to do with a freezer full of “dragon” sausages now.
Next you’ll be telling me that my canned unicorn meat contains no actual unicorn:
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That is certainly true and might have been sufficient to dispose of the Webb litigation (but see below).
However the claim in Ms Fletcher’s case (which I can’t find the actual pleadings of anywhere - thank you modern media…) appears to be arguing that the product is not even ‘made from ginger’.
The relevant wording appears to be “ginger flavor extract” - what exactly does that mean? It might be a flavouring extracted from ginger, or it might just be something that tastes like ginger without in fact being ginger.
In addition, I think it would be pretty difficult to make a drink ‘from ginger’ which tastes of ginger without at least some scientifically detectable amount of ginger ending up in the final product.
Dr Pepper made exactly the arguments you are making (among many others) to try and have the claim in Missouri dismissed. Here’s the relevant section of the opinion explaining why the judge there was not persuaded:
Extract from court opinion
A. Sufficiency of Pleading Actionable Misrepresentation
Defendants argue Plaintiff has failed to plead an actionable claim that the Product’s label
“Made From Real Ginger” was false, misleading, or unfair. Defendants contend that Plaintiff’s
conclusion regarding the misrepresentation on the label is not supported by Plaintiff’s allegations that the lab test results showed no “detectable amount of ginger” contained in the Product.
Defendants contend Plaintiff’s conclusion is false because: (1) Plaintiff’s interpretation of the
representation is unreasonable, and (2) Plaintiff has not pled the falsity of the representation with particularized details about the lab testing. Defendants therefore argue that Plaintiff’s failure to plead a “cogent factual pleading” that the Product is not, in fact, “made from” ginger, disposes of the entire case.
Plaintiff argues he has sufficiently pled that the representation is false by alleging that the
Product does not contain a detectable amount of ginger as shown by lab testing. In support,
Plaintiff argues that the MMPA prohibits a representation that is truthful but nonetheless
misleading to reasonable consumers. Plaintiff argues a reasonable consumer could believe that a product labeled “Made From Real Ginger” would contain at least some detectable amount of ginger and that specificity regarding the lab testing is not required at the pleading stage.
A civil action under the MMPA requires a showing of “the use or employment by another
person of a method, act, or practice declared unlawful by section 407.020.” MO. REV. STAT.
§ 407.025.1. The unlawful practices set forth in § 407.020 include “deception; fraud; false
pretense; false promise; misrepresentation; unfair practice; or the concealment, suppression, or omission of any material fact.” MO. REV. STAT. § 407.020.1. Courts have interpreted the
MMPA to protect consumers from fraud and to “preserve fundamental honesty, fair play, and
right dealings in public transactions.” Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 310-11 (Mo. Ct. App. 2016). Whether the conduct alleged is deceptive under the MMPA is to be analyzed under the “reasonable consumer” standard. Id. at 312. Under the MMPA, the
reasonable consumer standard does not require plaintiffs to show individualized reliance upon the alleged [fraud or] misrepresentations; however, the plaintiffs “cannot base their claims on alleged fraud or misrepresentations upon which no reasonable consumer would rely”. Hurst v. Nissan North America, Inc., 2016 WL 1128297, at *8 ft. nt. 8 (W.D. Mo. March 22, 2016) (reversed on other grounds). Although Defendants argue Plaintiff’s interpretation is
unreasonable because the representation does not convey that the Product contains a particular amount of ginger, whether a reasonable consumer would be deceived by a label is generally a question of fact to be tried by a fact finder and is inappropriate to be resolved in a motion to dismiss. See Bratton v. Hershey Co., 2017 WL 2126864, at *8 (W.D. Mo. May 16, 2017); Thornton v. Pinnacle Foods Group LLC, 2016 WL 4073713, at *3 (E.D. Mo. Aug. 1, 2016) (the effect an ingredient label has on a reasonable consumer’s understanding is a fact question).
The Defendants’ citation to Kelly v. Cape Cod Potato Chip Co. Inc. to support that the
ingredient list on the Product forecloses Plaintiff’s theory does not change the Court’s
conclusion. 81 F. Supp. 3d 754, 761-62 (W.D. Mo. Jan. 27, 2015) (upholding the “ingredient
defense” and finding a reasonable consumer would not be deceived by an ambiguity in a
product’s label if that product had a disclosed ingredient list that clarified the ambiguity). After
Kelly, the Missouri Court of Appeals decided Murphy v. Stonewall Kitchen, LLC, and its holding conflicts with Kelly. 503 S.W.3d at 310-13. See Bratton, 2017 WL 2126864, at *7 (“Kelly was decided before Murphy, in which the Missouri Court of Appeals expressly rejected the ingredient label defense at the motion to dismiss stage,” and as a result of the Murphy decision, “Kelly is wrong to the extent that it holds, as a matter of law, that consumers are responsible for evaluating whether some information on a package label is inconsistent with other information on the label”); Murphy, 503 S.W.3d at 310-13 (the “FDA does not require an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct the misrepresentations;” further, a reasonable consumer would expect the ingredient list to comply with the representations made on the package); Thornton, 2016 WL 4073713, at *3 (“the mere presence of an ingredient statement on the back of a product does not eliminate the possibility that reasonable consumers may be misled”).
Defendants direct the Court to Chuang in support of the proposition that a reasonable
consumer would understand that labeling a product as “made with” some ingredient does not
convey that a specific amount of that ingredient will be present in the product. Chuang v. Dr.
Pepper Snapple Group, Inc. et al, 2017 WL 4286577 (C.D. Ca. Sept. 20, 2017). In Chuang, the product’s label stated the product was “made with real fruits and vegetables,” and contains “100% of your daily value of vitamin C,” but the plaintiff argued the label misled consumers into believing the product was healthy. Id. at *1-2. The Court found the defendant did not make any false statements concerning the product because the product did contain fruits and vegetables and a serving of the product contained 100% of the daily value of vitamin C. However here, unlike in Chuang, Plaintiff has pled sufficient evidence in the pleadings to assert Defendants have made false statements concerning the Product’s label and that the Product does not contain a detectable amount of ginger.
Accordingly, because Plaintiff alleges independent laboratory testing revealed that the
Product does not contain a detectable amount of ginger and a reasonable consumer would be misled into believing that the Product contains at least some detectable amount of ginger, the Court finds the representation “Made from Real Ginger” could be false or misleading to a
reasonable consumer.
TLDR:
A customer can plausibly claim that they were mislead by the advertising to think that the product would contain actual measurable amounts of ginger.
The ingredients list does not act as a ‘get-out-jail’ card for manufacturers to be able to make whatever claims they like about their product and then point to the ingredients list as being the ‘real’ claims about their product.
Consumers are not expected to read the ingredients list nor are they expected to decide which is accurate when faced with competing or confusing claims by the manufacturer.
It is also an advertising regulations standards issue but even the US appears at least to have a few bits of legislation dealing with consumer protection when it comes to misleading/deceptive practices in the sale of goods.
In any case, it would appear the judiciary do not agree with your view that the claim is ridiculous.
It may not be strong, it may not succeed but it does not appear totally misguided.
Oddly enough, I suspect this would be less of an issue in the EU simply because we don’t tend to go for mass litigation as a response to this kind of thing.
In the EU, consumers’ only remedy would generally be to complain to trading standards or the relevant advertising standards authority who would at best tell Dr Pepper that they’ve been very naughty and must go straight to bed without any supper. The advertising would get tweaked and that would be that.
That fact that one state court found that the plaintiff had standing to sue doesn’t mean that the suit isn’t ridiculous.
That’s my point though; this is a matter of advertising standards. We have no strictly equivalent authority in the US, though if there is actual fraud or assertions that might possibly causes harm either consumer protection or state attorney generals’ offices might go after the company.
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Which would be why your consumers sue instead.
Don’t have ridiculous laws and institutions if you don’t like the results. 
More seriously, that is genuinely why you get these lawsuits. Your legislators over years and years have generally chosen to make these things an issue of contract law rather than regulation.
If you only leave people a contractual, civil remedy, that is what they will take.
You then end up with lawsuits where people have to make admittedly silly claims like “I bought this product because I thought it would contain real ginger to calm my children’s upset stomachs” because they have to show some actual loss.
You’re essentially turning full circle back to legal fictions.
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Far from not liking the results, if you look at my first post on this you’ll see that I hope she wins, so that all such products will need renaming.
However, I don’t think she will; if she does get far enough to go to trial, Doctor P. will just make her an offer to avoid the annoyance, and she will accept it because she has no chance of winning at trial. Just like the guy in Missouri.
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‘Shopped—you can tell by the sparxels.
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I agree with your general point. It almost certainly will settle.
The reason it will settle though is that there is enough of a claim there that Dr Pepper actually need to defend it. If it were the case that she has ‘no chance of winning at trial’, the case wouldn’t get that far.
But it has now been suggested to me by Discourse that we’re hogging the conversation and that I should consider replying to “other people in the discussion, too”.
I think we’re fundamentally in agreement that it’s a silly thing to have to sue about so we can safely leave it there.
Perhaps it contains homeopathic quantities of (highly diluted) ginger.
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