7UP Sued for False Advertising on Soda Label

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 9, 2012

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The manufacturer of 7UP has been sued for false advertising on its new line of Cherry Antioxidant sodas.  Michael F. Jacobson, executive director of the Center for Science in the Public Interest, explained that his group filed the lawsuit because using antioxidants to make a soda seem healthy is misleading to the public.

Jacobson said, “7Up, like other sugary drinks, promote(s) obesity, diabetes, tooth decay and other serious health problems and no amount of antioxidants could begin to reduce those risks.”  He went on to compare the process to adding menthol to a cigarette because “neither does anything to make an unhealthy product healthy.” 

The lawsuit, filed in federal court in California, alleges that the use of pictured healthy fruits on the soda can would make consumers believe the antioxidants come from those fruits, when in reality they are not an ingredient.  7UP Cherry Antioxidant contains water, high-fructose corn syrup, citric acid, potassium benzoate, and the dye Red 40.  The soda does not contain cherries, cherry juice, or a form of cherry extract.  Any antioxidant present in the drink is artificial and does not make the product more healthy.

The lawsuit also alleges that claims of adding antioxidants to the soda are illegal in violation of US Food and Drug Administration (FDA) regulations which prevent using nutrients to make otherwise nutritionally worthless beverages seem healthy.

False Advertising

Advertising is regulated by the Federal Trade Commission (FTC), which is a United States Agency created to prohibit “unfair and deceptive acts or practices in commerce.”  According to FTC regulations, it is illegal for a company to advertise a product in such a manner that potentially deceives consumers.  A manufacturer does not necessarily have to use a slogan or a phrase that is misleading – false advertising can exist if the ad has the potential to mislead consumers. 

In the case of this lawsuit, the Center for Science in the Public Interest is alleging that the advertising, without specifically saying anything, has created a belief that the Cherry Antioxidant 7UP contains antioxidants from cherries.  In order to prove this advertising  has a misleading impact on consumers, the plaintiff must provide evidence that demonstrates that the image of the product created by the advertising was not accurate.  The lawsuit does not rely on showing that consumers actually relied on the misleading information to purchase the product, or that the manufacturers intended to mislead consumers.

False advertising laws are designed to protect consumers from marketing campaigns that tell blatant lies, and from campaigns that subtly mislead consumers about the qualities of a particular product.   Lawsuits like this differ from a typical civil lawsuit because the plaintiff is not seeking damages, but instead is asking a court to put a stop to the illegal practices of the manufacturer.  Depending on the FTC regulations, 7UP may face a fine for its advertising, but the only consequence could be revenue lost by pulling the product and using a more honest marketing campaign.

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