Case No.: 5:17-cv-00603-EJD

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JACKIE FITZHENRY-RUSSELL,

Plaintiff,

v.

THE COCA-COLA COMPANY,

Defendant.

Case No. 5:17-cv-00603-EJD 

ORDER DENYING DEFENDANT'S 

MOTION TO DISMISS; SETTING 

CASE MANAGEMENT CONFERENCE

Re: Dkt. No. 25

I. INTRODUCTION

In this putative class action, Plaintiff Jackie Fitzhenry-Russell (“Plaintiff”) alleges that the 

label on Seagram’s Ginger Ale, “Made With Real Ginger,” is false and misleading. Presently 

before the Court is Defendant The Coca Cola Company’s motion to dismiss the complaint 

pursuant to Fed.R.Civ.P. 12(b)(6). The Court finds it appropriate to take the motion under 

submission for decision without oral argument pursuant to Civil L.R. 7-1(b). For the reasons set 

forth below, Defendant’s motion is denied. 

II. BACKGROUND

Defendant The Coca Cola Company (“Defendant”), a Delaware corporation with its 

principal place of business in Atlanta, Georgia, manufactures, distributes, markets, advertises and 

sells soft drinks in the United States under several brand names, including Seagram’s. The 

packaging for Seagram’s Ginger Ale (the “Product”) includes the statement “Made With Real 

Ginger.” Plaintiff alleges that Defendant prominently made the claim “Made With Real Ginger” 

on the front label panel of the Product, “cultivating a wholesome and healthful image in an effort 

to promote the sale of its soft drink and to compete with small batch ginger ales that do use real 

Case 5:17-cv-00603-EJD Document 48 Filed 10/18/17 Page 1 of 8
Case No.: 5:17-cv-00603-EJD

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

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ginger root.” Complaint at ¶4. Plaintiff also alleges that consumers value the representation 

“Made From Real Ginger” because studies have found that real ginger has health benefits. 

Plaintiff alleges that the statement “Made With Real Ginger” is false and misleading 

because the Product “is not made from real ginger root.” Complaint at ¶3. Rather, the Product is 

allegedly made from carbonated water, high fructose corn syrup, citric acid, preservatives, and 

“natural flavor.” Complaint at ¶22.1 The “natural flavor” is allegedly “a chemical flavoring 

compound that is manufactured to mimic the taste of ginger, but does not contain ginger as a 

reasonable consumer understands it to mean and contains none of the health benefits of real ginger 

root.” Id. The Food and Drug Administration has defined “natural flavor” to mean “the essential 

oil, oleoresin, essence or extractive, protein hydrolysate, distillate, or any product of roasting, 

heating or enzymolysis, which contains the flavoring constituents derived from a spice, fruit or 

fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant 

material, meat, seafood, poultry, eggs, dairy products, or fermentation products thereof, whose 

significant function in food is flavoring rather than nutritional.” Id. at ¶25 (quoting 21 C.F.R. 

§501.22(a)(3)).

 Plaintiff acknowledges that Defendant might use ginger root in the creation of the “natural 

flavor” in the Product. Id. at ¶26. Plaintiff alleges, however, that the “natural flavor” in the 

Product is not ginger as a reasonable consumer would understand it. Id. Rather, Plaintiff alleges 

that the scientists that created the “natural flavor” in the Product “would have isolated proteins 

from the cells and tissue of the ginger root or extracted oils or essences from the ginger root. But 

because those isolated compounds may not actually taste like ginger, the scientist would have then 

combined those extractions with any number of other extractions from other plants and animals to 

create a flavoring substance that tastes like ginger.” Id. Plaintiff alleges that “an average 

 

1 Defendant requests that the Court take judicial notice of a more recent version of the product 

packaging for the Product that lists ginger as an ingredient. The request for judicial notice is 

denied because Defendant has not provided evidence to authenticate the packaging. Furthermore, 

Plaintiff contends that this version of product packaging is not the same version of the product 

packaging that was affixed to the cases of ginger ale she purchased, which did not list ginger as an 

ingredient. 

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Case No.: 5:17-cv-00603-EJD

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

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consumer does not have the specialized knowledge necessary to ascertain that the ginger flavor in 

the soft drink is not from the presence of real ginger in the soft drink but instead comes from the 

chemical compound[] added to the drink to make it taste like ginger.” Id. at ¶38. 

Plaintiff alleges that Defendant intended for consumers to read the statement “Made With 

Real Ginger” and to believe the Product is made from and contains real ginger. Id. at ¶43. 

Plaintiff also alleges that Defendant had an incentive to emphasize the presence of ginger in the 

Product “to appeal to consumers seeking real ingredients instead of a traditional soda.” Id. at ¶45. 

Plaintiff further alleges that Defendant knew and intended that consumers would purchase and pay 

a premium for the Product because they would perceive the Product as more nutritious and 

healthful than other brands of ginger ales that are not made with real ginger. Id. at ¶46. 

Plaintiff allegedly purchased several cases of the Product over the last two years. Id. at 

¶54. Plaintiff allegedly made each of her purchases of the Product after reading and relying on the 

statement “Made With Real Ginger” and believing the Product was made with and contained real 

ginger. Id. at ¶55. Plaintiff alleges that she “was attracted to the Product because, when given a 

choice, she prefers to consume soft drinks made with real ginger for health benefits, namely 

stomach calming or relaxation.” Id. at ¶56. Plaintiff allegedly would not have purchased the 

Product, or would have paid less for the Product, if she had known the Product was not “Made 

With Real Ginger.” Id. at ¶59.

 Based upon the foregoing allegations, Plaintiff seeks to represent a nationwide class 

comprised of all persons who, between December 23, 2012 and the present, purchased the 

Product. Plaintiff asserts claims for violations of California’s Consumers Legal Remedies Act 

(“CLRA”), the False Advertising Law (“FAL”), the Unfair Competition Law (“UCL”), and for 

common law fraud, deceit and/or misrepresentation.

III. STANDARDS

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of claims 

alleged in the complaint. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 

1995). When deciding whether to grant a motion to dismiss, the court must generally accept as 

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Case No.: 5:17-cv-00603-EJD

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

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true all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The court 

must also construe the alleged facts in the light most favorable to the plaintiff. See Retail Prop. 

Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014)

(providing the court must “draw all reasonable inferences in favor of the nonmoving party” for 

a Rule 12(b)(6) motion). Dismissal “is proper only where there is no cognizable legal theory or an 

absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 

F.3d 729, 732 (9th Cir. 2001). 

Consumer-protection claims that sound in fraud, as Plaintiff’s do, are subject to the 

heightened pleading requirements of Fed.R.Civ.P. 9(b). Vess v. Ciba-Geigy Corp. USA, 317 F.3d 

1097, 1102 (9th Cir. 2003); see also Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 

2009). Rule 9(b) requires that “a party must state with particularity the circumstances constituting 

fraud. . . .” Fed.R.Civ.P. 9(b). The circumstances constituting the fraud must be “specific enough 

to give defendants notice of the particular misconduct which is alleged to constitute the fraud 

charged so that they can defend against the charge and not just deny that they have done anything 

wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Therefore, a party alleging 

fraud must set forth “the who, what, when, where, and how” of the misconduct. Vess, 317 F.3d at 

1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). 

IV. DISCUSSION

A. Whether Plaintiff Sufficiently Alleged “Made With Real Ginger” Is False or Misleading

Claims under California’s UCL, FAL and CLRA are governed by the “reasonable 

consumer” test. Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008). Under the 

reasonable consumer standard, a plaintiff must show that members of the public are likely to be 

deceived. Id. This standard also applies to common law fraud and negligent misrepresentation 

claims. Ham v. Hain Celestial Grp., Inc., 70 F.Supp.3d 1188, 1193 (N.D. Cal. 2014) (citing 

Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)). “Whether a reasonable consumer would 

be deceived by a product label is generally a question of fact not amenable to determination on a 

motion to dismiss.” Ham, 70 F.Supp.3d at 1193. “[I]n rare situations a court may determine, as a 

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Case No.: 5:17-cv-00603-EJD

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

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matter of law, that the alleged violations of the UCL, FAL and CLRA are simply not plausible.” 

Id. (citing Werbel ex rel. v. Pepsico, Inc., No. 09-cv-4456-SBA, 2010 WL 2673860, at *3 (N.D. 

Cal. July 2, 2010) (a reasonable consumer would not be deceived into believing that cereal named 

“Crunch Berries” derived significant nutritional value from fruit)); see also Manchouck v. 

Mondelez International, Inc., No. C13-02148 WHA, 2013 WL 5400285 (N.D. Cal. Sept. 26, 2013) 

(rejecting claim that “Made With Real Fruit” made in connection with Strawberry and Raspberry 

Newton sandwich cookies was misleading where the cookies contained only “a small amount of 

processed fruit puree”).

Defendant moves to dismiss Plaintiff’s complaint for failure to allege a false or misleading 

statement. Defendant reasons that in paragraph 26 of the complaint, Plaintiff admits that the 

Product is, in fact, made with real ginger and therefore, “Made With Real Ginger” is not a false

statement.

2

Defendant’s reading of the complaint is inaccurate. Nowhere does Plaintiff admit that the 

Product is made with real ginger. Instead, Plaintiff alleges repeatedly that the Product is not made 

from real ginger, and therefore the statement “Made With Real Ginger” is false or misleading. 

Complaint at ¶¶3, 22, 33, 37, 38. Specifically, in paragraph 26 of the complaint, Plaintiff alleges:

While it may be that ginger root is used in the creation of the natural 

flavor, it is not ginger as a reasonable consumer would understand it. 

Rather the scientists that created the ‘natural flavor’ added to the 

Product would have isolated proteins from the cells and tissue of the 

 

2 Defendant also argues that the statement “Made With Real Ginger” is not misleading because it 

cannot reasonably be construed as a representation about the health benefits of ginger or a 

representation about the form or quantity of the ginger in the Product.

 Plaintiff clarifies in her motion papers that she is not contending that consumers would interpret 

the statement “Made With Real Ginger” to mean that the Product confers health benefits. 

Plaintiff’s Opposition, pp. 7-8. Rather, Plaintiff included allegations about the health benefits of 

real ginger to explain why Defendant’s statement “Made With Real Ginger” would be material to 

reasonable consumers and why consumers would be willing to pay a price premium to purchase a 

beverage they believed contained real ginger. Id.

 Also, contrary to Defendant’s argument, Plaintiff does not allege that “Made With Real Ginger” 

communicates to consumers that ginger is present in a certain quantity or form. Rather, Plaintiff 

alleges that reasonable consumers reading the statement “Made With Real Ginger” would interpret 

it to mean that the Product is flavored with and contains real ginger when in fact, the Product does 

not contain real ginger.

 

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ORDER DENYING DEFENDANT'S MOTION TO DISMISS

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ginger root or extracted oils or essences from the ginger root. But 

because those isolated compounds may not actually taste like ginger, 

the scientist would have then combined those extractions with any 

number of other extractions from other plants and animals to create 

a flavoring substance that tastes like ginger.

Complaint at ¶26. Defendant characterizes the allegations above as based on nothing more than 

“pure speculation” because Plaintiff did not perform any empirical tests of the Product. 

Defendant’s Reply Brief, p. 3. Although Plaintiff has not alleged she performed any tests on the 

Product, she alleges sufficient facts from which to infer that the statement “Made With Real 

Ginger” is false or misleading. Plaintiff alleges that the Product contains only the following 

ingredients: carbonated water, high fructose corn syrup, citric acid, preservatives and “natural

flavor” and further alleges that the “natural flavor” is not ginger as a reasonable consumer would 

understand it. Complaint at ¶¶22, 26. Defendant contends that Plaintiff’s theory is “nonsensical,” 

arguing that a reasonable consumer would “understand that it is not physically possible to 

incorporate ginger root into a soft drink without first reducing it to ‘oils’ or ‘essences.’” 

Defendant’s Reply Brief, p.5. Whether a reasonable consumer would be deceived, however, is 

generally a question of fact not amenable to determination on a motion to dismiss. Ham v. Hain 

Celestial Grp., Inc., 70 F.Supp.3d at 1193. At the pleading stage, Court finds Plaintiff’s theory is 

“plausible” and the cases relied upon by Defendant are inapposite. 

For example, in Red v. Kraft Foods, No. CV-10-1028-GW, 2012 WL 5504011 (C.D. Cal. 

Oct. 25, 2012), the plaintiff claimed that the statement “Made With Real Vegetables” on a box of 

crackers was false and misleading. The court dismissed the consumer-protection claims after 

rejecting plaintiff’s assertion that the statement would lead a reasonable consumer to believe that 

the product was healthy and contained a significant amount of vegetables. The court concluded 

that “a reasonable consumer will be familiar with the fact of life that a cracker is not composed of 

primarily fresh vegetables,” and that “it strains credulity to imagine that a reasonable consumer 

will be deceived into thinking a box of crackers is healthful or contains huge amounts of 

vegetables simply because there are pictures of vegetables and the true phrase ‘Made with Real 

Vegetables’ on the box.” Id. at *3-4. In the present case, it does not “strain credulity” to imagine 

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that a reasonable consumer would believe that a ginger ale product bearing the statement “Made 

With Real Ginger” on the product label would, in fact, contain real ginger, and not just a chemical 

compound derived from ginger that was created in a laboratory to mimic the flavor of real ginger.

The case Workman v. Plum, Inc., 141 F.Supp.3d 1032, 1035-36 (N.D. Cal. 2015), is also 

distinguishable. In Workman, the court rejected the plaintiff’s claim that an image of certain 

ingredients on the product panel was false and misleading. Notably, the plaintiff in Workman

conceded that all four of the ingredients pictured on the product panel were actually present in the 

product. The court reasoned that a reasonable consumer would simply not view the pictures on 

the packaging and assume that the size of the items pictured directly correlated with their 

predominance in the product. Moreover, the court concluded that any potential ambiguity 

regarding the predominance of the pictured ingredients “could be resolved by the back panel of the 

products, which listed all ingredients in order of predominance. . . ” Workman, 141 F.Supp.3d at 

1035.

Unlike Workman, the Plaintiff in this case does not concede that ginger is present in the 

Product. Furthermore, unlike Workman, Plaintiff alleges that reasonable consumers “lack the 

meaningful ability to test or independently ascertain the truthfulness of” the statement “Made With 

Real Ginger.” Complaint at ¶38. Plaintiff also alleges that consumers “would not know the true 

nature of the ginger flavoring merely by reading the ingredient label; its discovery requires 

investigation beyond the grocery store and knowledge of food chemistry beyond that of the 

average consumer.” Id.

Furthermore, even if the chemical compound used to flavor the Product has trace amounts 

of ginger in it, the statement “Made With Real Ginger” is actionable because Plaintiff has alleged 

that the statement is likely to deceive reasonable consumers into believing that the Product is 

flavored with and contains real ginger. See e.g. Kasky v. Nike, Inc., 27 Cal.4th 939, 950 (2002) 

(UCL and false advertising law prohibit not only false advertising, “but also advertising which[,] 

although true, is either actually misleading or which has a capacity, likelihood or tendency to 

deceive or confuse the public.”) (quoting Leoni v. State Bar, 39 Cal.3d 609, 626 (1985)). 

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Plaintiff’s allegation that the statement “Made With Real Ginger” is false or misleading is 

sufficient at the pleading stage.

B. Class Claims

Defendant contends that the class claims on behalf of “all persons” who purchased 

Seagram’s Ginger Ale should be dismissed because they encompass sales outside of California to 

non-California consumers that are beyond the reach of California’s consumer protection laws. 

Plaintiff asserts that the scope of the class should be decided later in the context of a class 

certification motion and not a motion to dismiss.

The Court agrees that it is preferable to defer ruling on the scope of the class in the context 

of a class certification motion and not a motion to dismiss. See Bruton v. Gerber Prod. Co., No. 

12-CV-02412-LHK, 2014 WL 172111 (N.D. Cal. Jan. 15, 2014) (denying motion to strike 

nationwide class allegations because the court cannot resolve any choice-of-law challenge at the 

pleading stage). California applies a three-step “governmental interest analysis” to determine 

whether California law should apply extraterritorially. Figby v. Lifeway Foods, Inc., No. 13-CV04828-TEH, 2016 WL 4364225, at *6 (N.D. Cal. Aug. 16, 2016) (citing Mazza v. Am. Honda 

Motor Co., Inc., 666 F.3d 581, 590 (9th Cir. 2012)). At this stage in the proceedings, neither party 

has undertaken the governmental interest analysis and thus it would be premature to dismiss the 

class action claims at this stage. 

V. CONCLUSION

For the reasons set forth above, Defendant’s motion is DENIED. The Court sets a case 

management conference for November 16, 2017 at 10:00 a.m. The parties shall file a joint case 

management statement no later than November 6, 2017.

IT IS SO ORDERED.

Dated: October 18, 2017

______________________________________

EDWARD J. DAVILA

United States District Judge

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