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Proposed Class Action against Dr. Pepper alleging Canada Dry Ginger Ale Does Not Contain Real Ginger

A class action was filed on July 27, 2017 alleging Canada Dry Ginger Ale ("Canada Dry"), owned by Pepper Snapple Group, Inc. ("Dr. Pepper"), does not contain a detectable amount of actual ginger and that the company falsely labels and markets its beverage. U.S. District Judge Roseann Ketchmark, a Missouri federal judge, ruled on April 25, 2018 that the suit presents enough facts to make a case and denied Dr. Pepper's motion to dismiss Missouri resident Arnold E. Webb Jr.'s ("Webb") consumer fraud suit.

Judge Ketchmark ruled that Webb successfully stated a claim in the complaint for which relief can be granted, met the heightened pleading requirement for his fraud allegations and did not misinterpret the beverage's label that states it is "made from real ginger" when he arranged independent lab tests to measure the plant's presence in the drink.

"Judge Ketchmark cited two Missouri federal court rulings - Bratton v. Hershey Co. in the Western District in 2017 and Hawkins v. Nestle U.S.A. Inc. in the Eastern District in 2018. She said the rulings reject the argument that there can be no ongoing harm once a plaintiff learns of a company's alleged deception."

"This court is especially persuaded by Bratton and Hawkins, and therefore rejects defendants' argument that plaintiff suffers no concrete and particularized harm because he is now aware the product does not contain ginger," Judge Ketchmark wrote. "Like in Bratton and Hawkins, plaintiff is aware that the product allegedly does not contain ginger and has stopped purchasing the product. However, as in Bratton and Hawkins, plaintiff would purchase the product again if the alleged unlawful conduct ceased."

Dr. Pepper claims that its Canada Dry product drink is "made from real ginger" on its labels and in its marketing such as televised and billboard advertising. This claim implies that "the plant's presence is in the drink, yet independent testing by a laboratory found that the beverage doesn't contain a detectable amount of ginger," Webb said.

"Had plaintiff and other consumers known that the product did not contain a detectable amount of ginger they would not have purchased the product or would have paid significantly less."

On September 27, 2017, Dr. Pepper moved to dismiss Webb's proposed class suit, saying that Webb did not allege any actionable claim "with the requisite particularity" in his complaint.

Webb, saying the company has sold millions of units of Canada Dry, seeks to represent both a nationwide class and a Missouri subclass of consumers under the state's Merchandising Practices Act. He asks for an order awarding monetary damages in an amount to be determined by the court or a jury.

The legal team at Shepherd, Finkelman, Miller & Shah ("SFMS") has significant experience litigating class action matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier ([email protected]) or Chiharu Sekino ([email protected]). We can also be reached toll-free at (866) 540-5505.

SFMS is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, and Pennsylvania. SFMS is an active member of Integrated Advisory Group (www.iaginternational.org), which provides us with the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.

Sources

Hanson, Joyce. "Dr Pepper Can't Shake Suit Over Ginger Ale Label". Law360. Last Modified on April 26, 2018.

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