Thursday, May 20, 2010

Marketing of “Original Formula” Classic Coke Was Not Unfair or Deceptive

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

Coca-Cola’s marketing of “Classic,” “Original Formula” Coke with high fructose corn syrup (HFCS) substituted for sucrose was not an unfair practice under the Illinois Consumer Fraud Act, the federal district court in East St. Louis, Illinois has ruled.

Claims that the marketing was a deceptive practice failed for either lack of causation of injury or time limitations, the court held.

Three factors are to be considered in determining whether a trade practice is unfair:

(1) whether the practice offends public policy;

(2) whether it is immoral, unethical, oppressive, or unscrupulous; and

(3) whether it causes substantial injury to consumers.

No public policy of Illinois proscribed the used of HFCS. Because a purchaser was unaware of Coca-Cola’s use of “Original Formula” to market the product, he was not oppressed by the practice. Finally, there was no substantial injury because the purchaser or any other consumer could have drunk a different beverage, according to the court.


Because the purchaser never saw the words “Original Formula” on containers of Classic Coke, his deceptive practices claim necessarily foundered on the issue of causation, according to the court. An unjust enrichment claim based on the deceptive practices theory also failed.

Time Limitations

Another purchaser’s claims were time-barred because she reasonably knew or could have known in the 1990s of her alleged injury from Coca-Cola’s marketing but failed to bring suit until well into the next decade. The consumer fraud statute of limitations was three years, and the limitation for unjust enrichment was five years.

The April 27 opinion in Kremers v. Coca-Cola Co. is reported at CCH Advertising Law Guide ¶63,835 and CCH State Unfair Trade Practices Law ¶32,051.

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