On April 1, 2020, Chris Waldon was quoted in Food & Beverage Insider regarding class action litigation over Coca-Cola Co. Inc.’s labeling practices and the presence of phosphoric acid in its iconic soft drink.
According to the article, Coca-Cola remains mired in multidistrict litigation over whether it deceived consumers by representing that its soft drink is free of artificial flavoring and chemical preservatives. A February 14 court decision, which partially granted a motion for class certification, could pave the way for a trial.
The function of phosphoric acid is an essential question in the years-long litigation. The plaintiffs allege that Coca-Cola has violated state and federal laws by failing to disclose that phosphoric acid is used as an artificial flavoring and chemical preservative.
Now that a class has been certified, Waldon anticipates a lot of discovery on the issue of how phosphoric acid functions.
“Different manufacturers use phosphoric acid for different reasons,” said Waldon. “If it has some sort of impact on the taste, and is not natural like it’s man-made, does that make it an artificial flavor? And that’s a little bit more difficult question—possibly not one a scientist could answer.”
Waldon suggested different kinds of evidence could be produced to answer the question, including, for example, an analysis of the properties of phosphoric acid and how the ingredient might help to preserve Cokes sitting on store shelves.
“That question—of what amounts to a preservative—is a question of fact as I understand it in this case,” he said. “That is not necessarily going to be exclusively a topic for expert testimony.”