NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 31 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: COCA-COLA PRODUCTS No. 20-15742

MARKETING AND SALES PRACTICES

LITIGATION (NO. II), D.C. No. 4:14-md-02555-JSW ______________________________

GEORGE ENGURASOFF; JOSHUA MEMORANDUM*

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.

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. 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.

2 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,

3 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

4 “[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

5 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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