LOS ANGELES (Legal Newsline) – The makers of Canada Dry Ginger Ale have filed a motion to dismiss a second complaint brought by consumers alleging false advertising by using the phrase “made from real ginger” on the product.
Arash Hashemi, Natasha Safaradi and Patrick Gilburt filed a complaint on March 14 in the U.S. District Court for the Central District of California against Dr. Pepper Snapple Group Inc. and Dr. Pepper/Seven Up Inc. alleging violation of state civil codes, negligent representation, common law fraud and other counts. A motion to transfer the case to the U.S. District Court for the Northern District of California was filed April 25.
The plaintiffs allege in the complaint that Dr. Pepper Snapple Group Inc. and Dr. Pepper/Seven Up Inc. misrepresented their product with the label “made from real ginger” when the product has “no detectable amount of ginger.” They also contend that Canada Dry Ginger Ale television commercials reinforced this misrepresentation.
The makers of Canada Dry Ginger Ale seek to dismiss the case, stating in court documents that the plaintiffs failed to prove their case that there was anything “false, deceptive, unfair or unlawful” about the labeling “made from real ginger.”
The motion for dismissal also states that Hashemi, Safardi and Gilburt's suit is a "copy-cat complaint" as it challenges the same words for the same product on behalf of the same class of consumers as a previous suit pending in the Northern District of California filed by Jackie Fitzhenry-Russel.
According to court documents, Dr. Pepper Snapple Group Inc. and Dr. Pepper/Seven Up Inc. contend they “represented, truthfully, that Canada Dry Ginger Ale is made from real ginger, i.e., that ginger is used in the creation of the product (specifically, in creation of the “natural flavor” that is disclosed on the label as an ingredient)."
A product made “from” ginger means that ginger was involved at “the starting point” of the process, the suit states.
The makers of Canada Dry Ginger Ale also claim that the plaintiffs failed to prove they have ever actually viewed any television commercials or that they relied on any statements in those commercials to decide to purchase the product.
The plaintiffs request a trial by jury and seek all damages, interest, restitution, injunctive relief, all legal fees and any other relief as this court deems just. They are represented by Barbara A. Rohr and Benjamin Heikali of Faruqi & Faruqi LLP in Los Angeles.