For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Monday, 9 August 2010

What no consumer could reasonably misled into thinking

Never one to think harsh thoughts about large and successful brand-owning international corporations, the IPKat wondered, on reading the title "The Dark Side of Vitaminwater", what on earth it could be about. A long time admirer of England's Lake District, he was familiar with Loweswater, Ullswater and Wast Water. Could Vitaminwater be a similar, but hitherto unknown beauty spot, with a dark side where mountains sheltered it from the sun? He scoured his atlas for Vitaminwater, but it was nowhere to be found. The Kat soon found that this article, by John Robbins (author of The New Good Life, Diet For A New America), published last week on the Huffington Post, was on quite a different topic. In short:

Coca-Cola is being sued by a non-profit public interest group, on the grounds that the company's vitaminwater products make unwarranted health claims. No surprise there. But how do you think the company is defending itself? In a staggering feat of twisted logic, lawyers for Coca-Cola are defending the lawsuit by asserting that "no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage."

Does this mean that you'd have to be an unreasonable person to think that a product named "vitaminwater," a product that has been heavily and aggressively marketed as a healthy beverage, actually had health benefits? Or does it mean that it's okay for a corporation to lie about its products, as long as they can then turn around and claim that no one actually believes their lies?

In fact, the product is basically sugar-water, to which about a penny's worth [an American penny's worth, which is substantially less than a Sterling penny's worth] of synthetic vitamins have been added. And the amount of sugar is not trivial. A bottle of vitaminwater contains 33 grams of sugar, making it more akin to a soft drink than to a healthy beverage.

... The lawsuit, brought by the Center for Science in the Public Interest, alleges that vitaminwater labels and advertising are filled with "deceptive and unsubstantiated claims." In his recent 55-page ruling, Federal Judge John Gleeson (U.S. District Court for the Eastern District of New York), wrote, "At oral arguments, defendants (Coca-Cola) suggested that no consumer could reasonably be misled into thinking vitamin water was a healthy beverage." Noting that the soft drink giant wasn't claiming the lawsuit was wrong on factual grounds, the judge wrote that, "Accordingly, I must accept the factual allegations in the complaint as true."

I still can't get over the bizarre audacity of Coke's legal case. Forced to defend themselves in court, they are acknowledging that vitaminwater isn't a healthy product. But they are arguing that advertising it as such isn't false advertising, because no could possibly believe such a ridiculous claim. I guess that's why they spend hundreds of millions of dollars advertising the product, saying it will keep you "healthy as a horse," and will bring about a "healthy state of physical and mental well-being ...".
The IPKat is fascinated and looks forward to following this up. Merpel notes that in Europe there are numerous trade mark registrations for a figurative mark containing the words "Glaceau vitaminwater" (here), but that the word "vitaminwater" appears to be somewhat dominant -- that should shaft the aspirations of any competitors who want to use the word to describe a product comprising vitamins and water.

What Coca-Cola paid Glaceau for Vitaminwater here
Vitaminwater Facebook page here
Vitaminwater Sucks Facebook page here

2 comments:

Patentology (Mark Summerfield) said...

While this is all very polemically exciting for the US "health lobby", it is actually legally quite dull.

The decision in this case is in respect of a motion to dismiss filed by Coca-Cola. As Judge John Gleeson states in the decision (see http://cspinet.org/new/pdf/order_on_m-dismiss_doc_44.pdf, page 9):

"Motions to dismiss ... test the legal, not the factual, sufficiency of a complaint. ... Accordingly, I must accept the factual allegations in the complaint as true..."

So Coca-Cola had no choice, at this stage of the proceedings, other than to try to make a legal argument based on an assumption that the plaintiff's allegations are factually correct.

Judge Gleeson found that the plaintiff adequately stated ten out of its 13 claims (three were dismissed, so Coca-Cola had some success).

The opportunity for Coca-Cola to present evidence, and argue the suit on its merits, still lies ahead.

Jennifer said...

Yes, Coke's reasoning is a bit odd but still I underdstand their point- I for one like VITAMINWATER but have never considered it a "healthy" or even low calorie beverage but another variety of soft drink- perhaps this is because I am American and have been exposed to such a wide variety of this type of product?

With regards to the sugar content of 33gm of sugar per 500ml- I would like to point out that apple juice, for instance, has more than 50 gm of sugar per 500 ml- and while apple juice may be healthier it is still a great way to gain weight if you aren't careful!

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