In re: COCA-COLA PRODUCTS MARKETING v. Coca-Cola Refreshments USA, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: COCA-COLA PRODUCTS
MARKETING AND SALES PRACTICES
LITIGATION (NO. II),
______________________________
GEORGE ENGURASOFF; JOSHUA
OGDEN; PAUL MERRITT; YOCHEVED
LAZAROFF; RACHEL DUBE; RONALD
SOWIZROL; MICHELLE MARINO;
THOMAS WOODS,
Plaintiffs-Appellees,
v.
COCA-COLA REFRESHMENTS USA,
INC.; THE COCA-COLA COMPANY;
THE COCA-COLA COMPANY; BCI
COCA-COLA BOTTLING COMPANY;
COCA COLA BOTTLING COMPANY OF
SONORA, CALIFORNIA, INC.,
Defendants-Appellants.
No. 20-15742
D.C. No. 4:14-md-02555-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted February 12, 2021
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 31 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: BERZON, CHRISTEN, and BADE, Circuit Judges.
Coca-Cola Refreshments U.S.A., Inc. (“Coca-Cola”) appeals an order of the
district court granting class certification in a multidistrict consumer action alleging
mislabeling of Coke.1 Plaintiffs in this class action contend that phosphoric acid is
a chemical preservative or an artificial flavor; that Coca-Cola misled the public by
using the advertising slogan “no artificial flavors. no preservatives added. since
1886” even though Coke contains phosphoric acid; and that Coca-Cola continues
to mislabel its product by not including a required disclosure that phosphoric acid
is an “artificial flavor” or a “preservative.” “We review de novo a district court’s
determination of whether a party has standing” under Article III, In re Facebook,
Inc. Internet Tracking Litig., 956 F.3d 589, 597 (9th Cir. 2020), and conclude that
plaintiffs have not demonstrated a threat of future harm sufficient to support their
claim for injunctive relief. See Davidson v. Kimberly–Clark Corp., 889 F.3d 956,
969 (9th Cir. 2018).
I
“To establish injury in fact [for Article III standing], a plaintiff must show
that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete
and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”
1 This disposition uses “Coke” to refer to the specific soft drink sold by
Coca-Cola at issue in this case: the “original formula,” not any other varieties of
soft drinks using the “Coke” name.

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Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)); see also TransUnion LLC v. Ramirez,
141 S. Ct. 2190, 2200 (2021). Under Davidson, “a previously deceived consumer
may have standing to seek an injunction against false advertising or labeling, even
though the consumer now knows or suspects that the advertising was false at the
time of the original purchase, because the consumer may suffer an ‘actual and
imminent, not conjectural or hypothetical’ threat of future harm.” 889 F.3d at 969
(citation omitted).
Davidson offered two non-exclusive examples of threatened future harm a
consumer complaining of assertedly false labeling might plausibly allege: “she will
be unable to rely on the product’s advertising or labeling in the future, and so will
not purchase the product although she would like to” and “she might purchase the
product in the future, despite the fact it was once marred by false advertising or
labeling, as she may reasonably, but incorrectly, assume the product was
improved.” Id. at 969–70. In Davidson, the plaintiff contended that Kimberly–
Clark falsely labeled its wipes as “flushable” and alleged that she “would purchase
truly flushable wipes,” a “desire . . . based on her belief that ‘it would be easier and
more sanitary to flush the wipes than to dispose of them in the garbage.’”
Id. at 970–71. The alleged harm, “her inability to rely on the validity of the
information advertised on Kimberly–Clark’s wipes,” was particular to Davidson,

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who would be affected “in a personal and individual way” because of her desire to
purchase the product as advertised. Id. at 971. And at the motion to dismiss stage,
her plausible allegations that she “would purchase truly flushable wipes
manufactured by Kimberly–Clark if it were possible” made the informational
injury she suffered concrete. Id.
None of the plaintiffs in this case allege a desire to purchase Coke as
advertised, that is, free from what they believe to be artificial flavors or
preservatives, nor do they allege in any other fashion a concrete, imminent injury.
Instead, as Plaintiffs explained in their brief, they have “each stated that if Coke
were properly labeled, they would consider purchasing it.” Under governing law,
such an abstract interest in compliance with labeling requirements is insufficient,
standing alone, to establish Article III standing. See Spokeo, 136 S. Ct. at 1550.
Moreover, the imminent injury requirement is not met by alleging that the
plaintiffs would consider purchasing Coke. See Davidson, 889 F.3d at 970.
II
Specifically, Engurasoff testified that he has not stopped drinking Coke but
has not bought any since April or May of 2012. Engurasoff was not directly asked
about future purchase decisions and did not submit a declaration. Dube testified
that had she known that Coke contained artificial flavors and chemical
preservatives in 2008, she would have bought “very limited quantities” of it

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“[b]ecause I would have known that it wasn’t as healthy an option as I thought it
was.” But she did not specify whether she would want to purchase Coke in the
future. Without any stated desire to purchase Coke in the future, Engurasoff and
Dube do not have standing to pursue injunctive relief. See Stover v. Experian
Holdings, Inc., 978 F.3d 1082, 1088 (9th Cir. 2020).
Four plaintiffs, Ogden, Merritt, Sowizrol, and Lazaroff, submitted
declarations stating that they “would consider purchasing” Coke depending on
“several factors, including but not limited to what disclosures Coca-Cola provided
regarding phosphoric acid or any other ingredient in Coke, whether Coca-Cola
removed phosphoric acid, and what, if anything, replaced phosphoric acid, and the
price of [Coke] relative to other beverages.” To have standing to seek injunctive
relief, the “threatened injury must be certainly impending to constitute injury in
fact” and “allegations of possible future injury are not sufficient.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (emphasis omitted) (citations
omitted). These plaintiffs’ declarations that they would “consider” purchasing
properly labeled Coke are insufficient to show an actual or imminent threat of
future harm. Davidson, 889 F.3d at 969.2
2 Coca-Cola argues that plaintiffs cannot show standing because their
decision to purchase Coke would turn on multiple factors “including some—such
as price—that have no relationship to the relief they seek.” The consideration of
price is not dispositive. Nothing in Davidson required plaintiffs seeking

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Finally, Woods and Marino explained that they were not concerned with
phosphoric acid, but rather with whether Coca-Cola was telling the truth on its
product’s labels. Both asserted that they would be interested in purchasing Coke
again if its labels were accurate, regardless of whether it contained chemical
preservatives or artificial flavors. A plaintiff “cannot satisfy the demands of
Article III by alleging a bare procedural violation.” Spokeo, 136 S. Ct. at 1550.
And “[a]n ‘asserted informational injury that causes no adverse effects cannot
satisfy Article III.’” TransUnion, 141 S. Ct. at 2214 (2021) (quoting Trichell v.
Midland Credit Mgmt., Inc., 964 F.3d 990, 1004 (11th Cir. 2020)). Woods’ and
Marino’s desire for Coca-Cola to truthfully label its products, without more, is
insufficient to demonstrate that they have suffered any particularized adverse
effects.
As none of the plaintiffs here have demonstrated harm or imminence rising
to the level of that alleged in Davidson, they have not adequately alleged an injury
in fact and do not have standing to pursue injunctive relief.3
REVERSED.
injunctions in labeling cases to commit to buying the product at any price. We
conclude only that these plaintiffs did not submit any evidence that they currently
desire to purchase Coke.
3 As we have determined that these plaintiffs have not alleged sufficient
facts to support standing, we do not reach Coca-Cola’s further contentions that
plaintiffs have no risk of injury because Coke’s ingredients appear on the label or
that the district court erred in granting class certification.

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