Legal Newsline

Wednesday, September 18, 2019

'Ginger Ale devotees' continue to press class action against Canada Dry over 'real ginger' claims

By Karen Kidd | Feb 27, 2018

SAN FRANCISCO (Legal Newsline) – Whether it's "real ginger" that goes into cans and bottles of Canada Dry Ginger Ale is at the heart of a class action lawsuit against the beverage's maker, Dr. Pepper, currently making its way through U.S. District Court for California's Northern District.

Canada Dry's "Jack’s Ginger Farm" commercials, in which a voiceover claims "real ginger, real taste," may have some authenticity issues, according to the lawsuit. In one such Canada Dry commercial, a farmer pulling up ginger for harvest instead hauls out a bottle of Canada Dry

In another Canada Dry commercial, a woman attempts to take a bottle of the popular ginger ale from an ice-filled cooler, only to instead pull out the ginger farmer from the "Jack's Ginger Farm" field.

Voiceovers in the Canada Dry advertisements urge consumers to "Find your way to relaxation with the crisp, soothing taste of real ginger and bubbles. Canada Dry. The root of relaxation." The words "real ginger" also appear on the screen, as they do on cans and bottles of Canada Dry.

Ginger is not listed in the ingredient list for Canada Dry, though "natural ingredients" are

"This is a dispute about the ingredients in the can, not the flavor," U.S. Magistrate Judge Nathanael M. Cousins said in an order he handed down in the case in September. That order denied Dr. Pepper Snapple Group Inc.'s motion to dismiss for lack of personal jurisdiction and motion to dismiss for failure to state a claim.

"This is because the claims against Dr. Pepper all arise from the plaintiffs' belief that they were deriving health benefits from the ginger root that was supposedly in Canada Dry. At bottom, this case is not about disgruntled Canada Dry buyers suing because the gingery flavor in Canada Dry turned out not to come directly from actual ginger root, as opposed to being derived from actual ginger root."

The most recent activity in the case is a motion filed Feb. 23 to allow an attorney to appear for this case on behalf of Monica H. Smith. That motion was filed by Dr. Pepper/Seven Up Inc., Dr. Pepper Snapple Group Inc

At issue in the case, Jackie Fitzhenry-Russell, et al. v. Dr. Pepper Snapple Group Inc., et al. is whether consumers should believe the phrase "Made From Real Ginger" that for years has been on cans and bottles of Canada Dry. The phrase also pops up in the product's advertising.

Initial plaintiffs, Jackie Fitzhenry-Russell and Robin Dale, described in Cousins' September order as former "Canada Dry Ginger Ale devotees," filed the putative class action last year, claiming that they and others similarly situated purchased the popular ginger ale because of the well-known ginger root claim.

"The belief that Canada Dry contained ginger root was significant because, according to both plaintiffs, a reason they bought Canada Dry was the well-known health benefits of consuming ginger root," Cousins said in his September order that denied Dr. Pepper's motion to dismiss.

"In particular, Fitzhenry-Russell’s belief that Canada Dry contained ginger was based on this phrase on each can, 'Made From Real Ginger.' What does that elusive 'from' mean? Does Canada Dry Ginger Ale contain ginger root? The Court does not know, and fortunately, that is not the question it is being asked to answer here."

What the court was being asked for in that order was whether it had personal jurisdiction over Dr. Pepper, whether plaintiffs stated a claim against the defendants and whether the plaintiffs’ claims were preempted by the Federal Food, Drug, and Cosmetics Act (FDCA).

In that order, Cousins found the court does have personal jurisdiction over Dr. Pepper when it comes to claims in this case alleged by the nationwide class and that plaintiffs could bring their claims against Dr. Pepper based on the well-known advertising campaign. Cousins also found that, for the purposes of Dr. Pepper's motion to dismiss - which he denied - that the plaintiffs' claims are not preempted by the FCDA.

This past December, Cousins also denied a Dr. Pepper motion to certify its interlocutory appeal. Allowing the interlocutory appeal "would delay ultimate termination of this case based on current deadlines and the issues implicated in this case," Cousins said in that order.

Allowing that appeal "might lessen the number of class members, litigation would not be more protracted or expensive in the absence of an appeal because at this point, the parties are presumably well-underway of fact discovery and the deadline for the class certification brief is upcoming," Cousins said in his December order.

"Likewise, the fact that Dr. Pepper may not desire to expend the time and effort of considering choice of law issues for 50 states in its opposition brief is not a valid reason for requesting an interlocutory appeal."

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Dr. Pepper Snapple U.S. District Court for the Northern District of California