LOS ANGELES (Legal Newsline) - PepsiCo has filed its motion to dismiss a proposed class action lawsuit that alleges it can't call its Gatorade Fit drinks "healthy."
PepsiCo submitted the motion April 28 in Los Angeles federal court in response to plaintiff David Gumner's lawsuit, filed two months earlier. Gumner says PepsiCo misleads customers when it brands Fit drinks as "healthy real hydration."
PepsiCo fortifies the drinks with vitamins A and C in a manner which Gumner alleges violates FDA regulations.
"Vitamins are good for you. That much is obvious - or so one might have thought," the motion starts.
"Plaintiff does not dispute that Gatorade Fit contains the nutrients that FDA requires for a beverage to be labeled as 'healthy,' nor does he allege that he was misled by the product labeling in any way - he just believes the vitamins were not added for a permissible purpose.
"In the end, this is a case in search of a technical violation of FDA regulations, but without the facts to actually allege one."
Gumner calls Fit drinks essentially water that is flavored with a small amount of juice concentrate and citric acid and sweetened with stevia leaf extract. He is represented by Fitzgerald Joseph LLP in San Diego.
"(T)he regulation he claims was violated applies only under limited circumstances: If the products contain even 10% of the recommended daily intake of either vitamin A or C from ingredients other than added vitamins, it does not apply," the motion says.
"Plaintiff skips right over this critical step. He does not allege any facts to support his claim that all the vitamin A and C in the products was added - he simply says it is so."
PepsiCo also says the FDA allows products to be fortified with vitamins to correct a "dietary insufficiency" like an under-consumption ot those vitamins.
"Plaintiff's challenge to the alleged fortification of Gatorade Fit with these vitamins conflicts with FDA regulations and the source cited in his own complaint," the motion says.