Judge Wants Jury to Decide if "Modified Orange Oil" is the New "Orange"    

By Cicely Lubben

Last month, Judge Fernando Gaitan, Jr. decided that a false advertising class action against Simply Orange is not "simply" over. On February 8, the court denied the parties' cross motions for summary judgment finding that factual issues remain and the case should continue towards trial.

Consumers in seven states, including Missouri and Illinois, have consolidated claims in this class action alleging Coca-Cola falsely advertised that Simply Orange brand orange juice is“100% Pure Squeezed,” “NOT FROM CONCENTRATE,” “Simply Orange,” “Pure” and “Natural.” These representations were allegedly made on Simply Orange labeling, product packaging, print advertisements, point-of-sale materials, in television commercials, and on the Simply Orange website. Consumers assert that the representations are deceptive and misleading because Simply Orange is heavily processed and contains added chemically-engineered flavoring that is unnatural, scientifically produced, and designed in laboratories by chemists, food scientists, and flavorists. Consumers also claim Coca-Cola's deceptive advertisements allow Coca-Cola to charge a premium price to take advantage of consumers’ preference for pure and natural products.

The Consumers' Master Consolidated Complaint sets forth numerous state law claims for breach of express warranty, consumer fraud and deceptive practices, unjust enrichment, unfair competition, and false advertising. (Click here to view the Master Consolidated Complaint.) In Count II, for example, the Missouri consumers assert breach of the Missouri Merchandising Practices Act ("MMPA").1 Under the MMPA, it is unlawful to use “deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise...”2 The consumers in Missouri allege Coca-Cola breached the MMPA by concealing and failing to disclose the highly processed nature of Simply Orange, and that flavoring is added to Simply Orange.

Both sides filed Motions for Summary Judgment in November 2014, and in April 2015, the court directed the parties to conduct expedited discovery about the specific composition of the “modified orange oil” addback in Coca-Cola's Simply Orange products. The court also allowed consumers to seek information about the process used to create the “modified orange oil,” and the source of its contents. In February 2016, the court denied both parties' motions, finding that questions remained, including whether the processing of the oil and/or flavor components in Simply Orange makes those components into something other than ordinary orange oil or essence which must be disclosed on the products’ labels. Accordingly, litigation will proceed, including additional fact and expert discovery along with briefing on class certification issues.

The Simply Orange litigation is yet another example of the complicated issues involved in evaluating consumers' expectations when presented with "natural" products, and the potential risks for companies promoting such products. To avoid consumer lawsuits, companies need to stay current on the evolving landscape of advertising law applicable to "natural" products and avoid any advertising claims that could even potentially be interpreted in a manner that could mislead or deceive consumers. Companies should also confirm that products are properly labeled in compliance with any applicable U.S. Food & Drug Administration Requirements.3

The case is IN RE SIMPLY ORANGE ORANGE JUICE MARKETING AND SALES PRACTICES LITIGATION, MDL No. 2361, in U.S. District Court for the Western District of Missouri.

For more information about false advertising claims, please contact Michelle Corrigan or the Stinson Leonard Street attorney with whom you regularly work.

Related Resources
An Honest Struggle to Advertise "Natural" Products
Children's Products: An Overview of Advertising Laws and Regulations


1Mo. Rev. Stat. § 407.010 et seq.  

2Mo. Rev. Stat. § 407.020. 

3See e.g., Guidance for Industry: A Food Labeling Guide 

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