Friday, April 24, 2009

Enviga Drinker’s Tighter Pants Not Basis for Consumer Fraud Claim

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

A purchaser of the soft drink Enviga failed to assert an ascertainable injury under the New Jersey Consumer Fraud Act by claiming that her pants got tighter after she started drinking the “calorie burning” product, the federal district court in Camden, New Jersey has ruled.

The purchaser challenged as misleading Coca-Cola's advertising that 60 to 100 calories would be burned daily by drinking three cans of the beverage.

After reading the product label’s representations about calorie burning, the purchaser started drinking Enviga. She escalated her consumption to three cans daily based upon the advertising.

The purchaser testified that she did not weigh herself and was not attentive to her calorie intake during her two-and-a-half months of Enviga use. She claimed that she gained five pounds and that she knew this because her pants fit more tightly.


Even if the purchaser did fail to lose weight, this failure was held not to be causally attributable to Enviga’s inefficacy. The court said that the slight weight gain, if it occurred at all, was more likely attributable to subtle changes in diet, slightly less exercise, or natural weight fluctuations.

Enviga purports to cause the loss of only 60 to 100 calories daily, or the equivalent of approximately one apple, the court noted.

Despite counsel’s insistence that the purchaser’s diet remained rigidly consistent during the relevant period, the purchaser testified that her diet did indeed vary, including the inconsistent consumption of fruit juice and coffee with soy milk, as well as varying snack foods. Given these facts, and taking as true that the purchaser’s pants fit more tightly, the inferences that she failed to lose weight, and that Enviga caused her failure to lose weight, were patently unreasonable, the court concluded.

Because the purchaser's only claim failed, her pending motion for class certification was rendered moot.

The April 16 opinion in Franulovic v. Coca-Cola Co. will be reported at CCH Advertising Law Guide ¶63,348.

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