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5 versus 09 CV 395(JG)
6
COCA-COLA COMPANY, ET AL
7 Defendants. United States Courthouse
Brooklyn, New York
8 ------------------------------x
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14 A P P E A R A N C E S
18 Stephen Gardner
Center for the Science in the
19 Public Interest
5646 Milton Street
20 Suite 211
Dallas, TX 75206
21
Reese Richman LLP
22 230 Park Avenue
10th Floor
23 New York, NY 10169
BY: MICHAEL REESE, ESQ.
24 KIM RICHMAN, ESQ.
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22 REPORTED BY:
LISA SCHMID, CCR, RMR
23 225 Cadman Plaza East
Brooklyn, New York 11201
24 Tel: (718) 613-2644 Fax: (718) 613-2379
Proceedings recorded by mechanical stenography, transcript
25 produced by computer.
2 Company, et al.
25 Company.
11 and said that there was one thing that could be discerned from
13 preemption and find other ways of ruling. That may or may not
17 appearance.
23 Principle." You may remember law school and the dog that had
24 the first bite, the first free bite. The plaintiffs get a free
8 loaded with sugar, as the plaintiffs allege here, you can taste
12 you taste the product, you can taste sweetness and you're put
20 We know she didn't have one sip. She purchased Vitamin Water
22 one to two weeks -- two times per week between October 2007 and
1 four to eight times per month during the class period, which is
7 five times per month between October 2007 and July 2008. Mr.
8 Koh from California did not take one sip. He took many more.
16 Your Honor, and there, they just allege that they purchased
18 frequency.
2 principle, knocks out all the claims of all the plaintiffs from
5 know nothing except that they bought the product during the
8 affirmative pleading that they had only one sip, that as soon
9 as they knew the product had sugar, they ceased buying it.
11 you don't keep buying the product over and over and over again.
13 Mr. Petty and Ms. Valentine had brought ahead, bought one
18 the Supreme Court threw out in Twombly and Iqbal. You have to
21 we can throw out the New York claims, and we can throw out the
8 with field preemption, and we are not arguing before Your Honor
9 field preemption. We are not arguing that because the FDA can
10 regulate deceptive conduct under the Federal Food and Drug Act
20 NLEA says that the definition that you've got there, that you
23 definition.
1 Laws" -- I'm sorry. I don't have it with me. But the concept
4 with going out and defining that, unlike the case in Wyatt,
5 unlike the case in Holt, unlike the case in -- excuse me, Your
8 puts it out for formal notice and comment, and comes back. And
9 there are comments made -- and I believe some of them were made
13 now, you say that healthy means a product that's a good source
20 CSPI and others come back and say, let's benefit one,
22 sugar. The FDA took a look at this issue. And it decided for
23 three reasons, Your Honor, that it was not going to add sugar
8 sugar, because they're very trim and fit. So they didn't want
18 definition. You have the FDA going out and developing that
4 nutrients and B vitamins, and what have you, and does not
21 sugar.
9 court reporter.
12 again, please.
15 claims is that Vitamin Water not a sugary soft drink and that
15 characteristics."
19 of sugar."
25 the FDA, as a policy matter, has said that's not what we want
5 that it's correct that Bates says that the fact that you
9 identified.
12 what the meaning of the term is, and that's "beneficial." And
18 warranty.
21 has questions.
9 well, these people have tasted it, and it seems sweet to them.
10 How could they have not known there was sugar contained in it?
11 It fails for two reasons, and both legal reasons and factual
12 reasons.
14 to say, well, you get one free bait and switch. You get to
15 commit fraud one time, and shame on you if you buy the product
17 New Jersey and California or New York are about. You commit
21 the defendant for that of the plaintiffs, who have said that
22 they did not know that this product contained the high amount
3 deed, and I'm quoting here -- it's the rarest case where a
8 here.
20 that, you think about what does Vitamin C taste like? What
21 does Vitamin B12 taste like? What does Vitamin B3 taste like?
22 Are they sweet? Do they taste like something else? How about
3 word, that it did not contain sugar, that it was vitamins and
11 statements such as vitamins plus water equals all you need and
16 statements?
9 product.
15 straight to the point, that this case should proceed beyond the
24 THE COURT: If that's the way you had them, where they
25 were now? You are going to argue to the jury that they misled
5 our case fully for trial yet, but if you go to the grocery
6 store and you see where these products are placed, they're
15 illustrate why the Ninth Circuit was correct in the Gerber case
23 pleadings.
11 efforts, because those are not subject to the Food and Drug and
15 are worse than those in stores, because you can't even look on
16 the back to find the information. All we're talking about here
21 because it's not vitamin water. It's sugar water. We're not
23 that's not what is before the Court. That's not what we're
5 label, that make claims that are actually drug claims, that
7 NLEA.
12 with it, but we could take it off the table by getting rid of
13 it.
5 of sugar is a problem.
12 advertising?
19 FDA has defined that. That's not correct. The citation that
25 word "beneficial." And they said that the benefit of this rule
3 will profit people. Here, the only people that are profiting
5 plaintiffs had alleged they had one sip, threw out the product,
7 relief.
14 in applying it.
16 Number one, we believe the test is Twombly and Iqbal. It's not
17 placeable.
19 that you had fruit on the front, and if you tasted the product,
20 you really couldn't tell if the product did or did not have the
22 package. Here, you can tell there's sugar. The one free sip
25 always likes to use Grape Nuts. I think we all know Grape Nuts
16 uniform definition.
11 and Cosmetic Act been around 70 years, the Court said. And yet
25 healthy in labeling.
1 THE COURT: Thank you. Thank you, all. I'll take the
5 (Motion concluded.)
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