CENTER FOR SCIENCE IN THE PUBLIC INTEREST v. THE COCA-COLA COMPANY et al

Filing 43

MOTION to Dismiss Second Amended Complaint by THE COCA-COLA COMPANY. (Attachments: # 1 Text of Proposed Order # 2 Certificate of Service # 3 Brief # 4 Exhibit A# 5 Exhibit B)(BOYER, PETER)

CENTER FOR SCIENCE IN THE PUBLIC INTEREST v. THE COCA-COLA COMPANY et al

Doc. 43 Att. 3

IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE LINDA FRANULOVIC, individually and on behalf of a class of persons, Plaintiff, v. THE COCA-COLA COMPANY, Defendant. ) ) ) ) ) ) ) ) ) ) CIVIL NO. 1:07-cv-00539-RMB-JS CLASS ACTION Document Electronically Filed Return date: September 21, 2007

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED CLASS ACTION COMPLAINT McCARTER & ENGLISH, LLP By: GITA F. ROTHSCHILD PETER J. BOYER Four Gateway Center 100 Mulberry Street Newark, NJ 07102 [phone] [phone] (fax) Attorneys for Defendant The Coca-Cola Company

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 ARGUMENT AND AUTHORITY ................................................................................................ 4 I. FRANULOVIC FAILS TO STATE A CLAIM FOR ALLEGED VIOLATIONS OF THE CFA. ......................................................................................................... 4 A. B. Franulovic failed to plead her CFA claim with sufficient particularity. .............................................................................................4 Many of the statements identified by Franulovic are either mere puffery or based on her own assessment of Enviga's value and therefore cannot form the basis of a CFA claim. .....................................6

II.

FRANULOVIC FAILS TO STATE A CLAIM FOR ALLEGED VIOLATIONS OF THE NEW JERSEY FOOD AND DRUG LAWS. ........................................ 10

CONCLUSION ............................................................................................................................. 12

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TABLE OF AUTHORITIES Page(s) CASES Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496 (D.N.J. 2006) ....................................................................................................................................... 6, 9 Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997)............................................................................. 2 Cox v. Sears Roebuck & Co., 647 A.2d 454 (N.J. 1994) .............................................................. 11 FDIC v. Bathgate, No. 91-2779, 1993 WL 661961 (D.N.J. July 19, 1993) ................................... 4 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) ...................................... 4 Kirtley v. Wadekar, No. 05-5383, 2006 WL 2482939 (D.N.J. Aug. 25, 2006) ........................................................................................................................................... 6 Lum v. Bank of Am., 361 F.3d 217 (3d Cir. 2004) .......................................................................... 5 Monarch Life Ins. Co. v. Senior, No. 06-559, 2006 WL 3825138 (D.N.J. Dec. 22, 2006) ............................................................................................................................. 4 Monogram Credit Card Bank of Ga. v. Tennesen, 914 A.2d 847 (N.J. Super. Ct. App. Div. 2007) ....................................................................................................... 11 N.J. Citizen Action v. Schering-Plough Corp., 842 A.2d 174 (N.J. Super. Ct. App. Div. 2003) ................................................................................................................ 6, 7 N.J. Citizen Action v. Schering-Plough Corp., No. L-7838-01, 2002 WL 32344594 (N.J. Super. Ct. L. Div. May 12, 2002) ..................................................................... 7 Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 2d 494 (D.N.J. 1999) .......................................................................................................................... 4, 5 Pacholec v. Home Depot USA, Inc., No. 06-CV-827, 2006 WL 2792788 (D.N.J. Sept. 26, 2006) ............................................................................................................... 6 Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192 (3d Cir. 1993) .................................................................................................................................... 2 Rodio v. Smith, 587 A.2d 621 (N.J. 1991) ...................................................................................... 6 Romani v. Shearson Lehman Hutton, 929 F.2d 875 (1st Cir. 1991) ............................................... 2

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Trans Hudson Express, Inc. v. Nova Bus Co., No. 06-4092, 2007 WL 1101444 (D.N.J. Apr. 11, 2007) ................................................................................................. 4 Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429 (7th Cir. 1993) ........................................................................................................................................... 2 Wolfe v. Noble Learning Communities, Inc., No. 06-3921, 2006 WL 3825137 (D.N.J. Dec. 26, 2006) ................................................................................................. 5 Zebersky v. Bed Bath & Beyond, Inc., No. CIVA 06-CV-1735 PGS, 2006 WL 3454993 (D.N.J. Nov. 29, 2006) ..................................................................................... 4, 5 STATUTES N.J.S.A. § 24:17-1 et seq. ............................................................................................................. 10 N.J.S.A. § 24:17-5......................................................................................................................... 11 N.J.S.A. § 56:8-1 et seq. ............................................................................................................... 10 N.J.S.A. § 56:8-19......................................................................................................................... 11 N.J.S.A. § 56:8-2 et seq. ............................................................................................................... 11 RULES FED. R. CIV. P. 12(b)(6) .......................................................................................................... 1, 2, 4 FED. R. CIV. P.9(b) ................................................................................................................. passim

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INTRODUCTION The Center for Science in the Public Interest ("CSPI") originally filed this case on February 1, 2007, alleging that Defendants have engaged in "illegal, fraudulent, and deceptive business practices" in the marketing of their new sparkling green tea beverage, Enviga. Enviga contains a combination of caffeine and epigallocatechin gallate ("EGCG"), an antioxidant that occurs in green tea, that has been shown in scientific studies to increase calorie burning. See Second Amended Class Action Complaint ("Compl.") ¶¶ 4, 24, 36, 37. Thus, Defendants market Enviga as "The Calorie Burner" and inform consumers that drinking three cans of Enviga per day will result in additional daily calorie burning of approximately 60-100 calories. Compl. ¶¶ 21 ­ 23. In response to Defendants' original motion to dismiss, CSPI has conceded that it lacks any standing to assert these claims by filing a Second Amended Class Action Complaint ("Complaint") naming an individual, Linda Franulovic, as an additional Plaintiff and then voluntarily dismissing all claims brought by CSPI. The Complaint also drops all claims against Nestle USA, Inc. and Beverage Partners Worldwide (North America), leaving The Coca-Cola Company ("TCCC") as the only Defendant in this action. Although the addition of Franulovic addresses CSPI's lack of standing, Franulovic's claims also have fundamental defects that warrant dismissal for failure to state a claim under FED. R. CIV. P. 12(b)(6) and 9(b). Franulovic's allegations are essentially identical to CSPI's allegations in the original complaint. Thus, Franulovic acknowledges that TCCC's "Calorie Burner" and related marketing claims are supported by a scientific study. See Compl. ¶¶ 24 ­ 26. The study to which the Complaint refers repeatedly was published in the scientific journal Obesity. See Servane Rudelle, et al., Effect of a Thermogenic Beverage on 24-Hour Energy Metabolism in Humans, 15

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OBESITY 349 (Feb. 2007) ("Enviga Study") (attached as Exhibit A).1 Franulovic appears to concede that the Enviga Study demonstrates a calorie burning effect of a beverage containing EGCG and caffeine in the study subjects. See Compl. ¶¶ 24 ­ 26, 33. Franulovic, however, feels that the scope of the study is not broad enough to justify marketing Enviga as "The Calorie Burner" to the general population. Id. Franulovic's suggestion that the advertising claims are "unsubstantiated" is at best a bald legal assertion entitled to no deference for purposes of a Rule 12(b)(6) motion. As in CSPI's original complaint, Franulovic does nothing in this Complaint to explain away the many additional published scientific studies that demonstrate the ability of caffeine and EGCG to increase calorie burning. For example, the Enviga Study notes that "caffeine has been studied extensively . . . and it is well accepted that caffeine stimulates thermogenesis [calorie burning] and fat oxidation." Rudelle, supra, at 353-54. The authors also note that their results were "similar to that . . . observed by Dullo et al. whose subjects consumed a similar amount of epigallocatechin gallate (EGCG) and one-half the amount of caffeine as those in the present study." Id. at 353. Despite Franulovic's acknowledgement of the Enviga Study results, she brings two counts against TCCC, both grounded upon the New Jersey Consumer Fraud Act ("CFA"). As in CSPI's original complaint, Franulovic's second count differs from the first only by asserting that an alleged violation of "New Jersey food and drug laws" is an additional basis for a claim under the CFA. Compl. ¶¶ 62 ­ 64. Thus, Franulovic asserts a single cause of action ­ an alleged
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In ruling on a Rule 12(b)(6) motion to dismiss, this Court may consider documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading. See Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); see also Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997); Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429 (7th Cir. 1993); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n.3 (1st Cir. 1991). 2

violation of the CFA ­ as two separate counts. Franulovic fails to state a claim for an alleged violation of the CFA under either theory. First, Franulovic fails to plead her CFA claims with particularity as required by FED. R. CIV. P. 9(b). It is well-established that Rule 9(b) applies to claims under the CFA and, in the context of this case, requires specific allegations as to alleged product purchases, specific acts demonstrating causation, and specific facts showing Franulovic's own ascertainable losses. Franulovic's Complaint is devoid of these particulars. Second, Franulovic relies heavily on allegedly misleading statements that constitute advertising "puffery" as a matter of law. She also attempts to craft a violation of the CFA out of her own belief that the benefits from drinking three cans of Enviga per day are not sufficient in relation to the price charged for the product. See Compl. ¶ 32 (alleging that "it would take 35 days of constant consumption of Enviga ­ 105 cans at a cost of about $146 (at $1.39 per can) ­ to see even one pound of possible weight loss"). Franulovic's remedy in that situation is the same for any product ­ she can choose not to purchase a product if she believes the price is too high in relation to the benefits offered. Her belief does not, however, give rise to a consumer fraud claim because the price charged for Enviga and the potential benefits were disclosed to her. See Compl. ¶ 46 (alleging that "Franulovic read the Enviga can label's representations about calorie burning"). Finally, Franulovic cannot state a claim for alleged violations of the New Jersey Food and Drug laws because there is no private right of action under those laws. New Jersey's Food and Drug statutes are not among the specific set of regulations which, if violated, give rise to a claim under the CFA, and Franulovic's attempt to rely on the alleged "misbranding" of Enviga must fail.

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ARGUMENT AND AUTHORITY While it is true that courts ruling on motions under FED. R. CIV. P. 12(b)(6) must accept well-pleaded allegations in the Complaint as true, it is equally clear that courts are not required to credit improperly alleged "bald assertions" and "legal conclusions." See, e.g., In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997). Similarly, "legal conclusions draped in the guise of factual allegations may not benefit from the presumption of truthfulness." Trans Hudson Express, Inc. v. Nova Bus Co., No. 06-4092, 2007 WL 1101444, at *1 (D.N.J. Apr. 11, 2007). Applying these well-established principles, as is more fully detailed below, courts have repeatedly dismissed CFA claims having deficiencies similar to those presented by Plaintiff's Complaint. The same result is warranted here. I. FRANULOVIC FAILS TO STATE A CLAIM FOR ALLEGED VIOLATIONS OF THE CFA. A. Franulovic failed to plead her CFA claim with sufficient particularity.

It is well established that CFA claims are "subject to the particularity requirement of Rule 9(b) of the Federal Rules of Civil Procedure." FDIC v. Bathgate, No. 91-2779, 1993 WL 661961, at *2 (D.N.J. July 19, 1993) (dismissing CFA claim for failure to plead with particularity), aff'd 27 F.3d 850 (3d Cir. 1994); Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 2d 494, 494 (D.N.J. 1999) (same); see also Monarch Life Ins. Co. v. Senior, No. 06559, 2006 WL 3825138, at *7 n.5 (D.N.J. Dec. 22, 2006) (noting that "the pleading requirements of Rule 9(b) apply to both NJCFA and common law fraud claims"); Zebersky v. Bed Bath & Beyond, Inc., No. CIVA 06-CV-1735 PGS, 2006 WL 3454993, at *4 (D.N.J. Nov. 29, 2006) ("Like a claim of common law fraud, a claim under the NJCFA must satisfy the specificity requirement of FED. R. CIV. P. 9(b).").

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To satisfy the particularity requirements of Rule 9(b), a plaintiff must, at a minimum, allege the date, place, or time of the fraud, and must plead who said what to whom as well as the general content of the communication. See Lum v. Bank of Am., 361 F.3d 217, 224 (3d Cir. 2004). Franulovic's Complaint alleges a list of advertising statements regarding Enviga that she baldly asserts is either "unsubstantiated" or "uncorroborated." See Compl. ¶¶ 21, 22, 23. Franulovic, however, never identifies which of the allegedly "unsubstantiated" claims she saw prior to purchasing Enviga and, therefore, never alleges that any such claim actually caused her any ascertainable loss. Instead, Franulovic alleges in general terms only that she "saw

advertisements for Enviga and began drinking a can per day." See Compl. ¶ 45. Thus, Franulovic fails to identify any particular advertisement that allegedly caused her to purchase Enviga, or where or when she saw any alleged advertisement. She also fails to allege when she purchased Enviga, where she purchased Enviga, or how much she paid for Enviga. In fact, Franulovic has failed to plead any specifics regarding her purchases, other than stating that at one point she purchased one can per day and later started drinking three cans per day. See Compl. ¶¶ 45 ­ 47. These shortcomings are pervasive and fatal. As this Court recently held, a plaintiff must plead the particulars of her transaction to state a claim under the CFA. See Zebersky, 2006 WL 3454993, at *4 (granting defendant's motion to dismiss the plaintiff's CFA claim because "Plaintiff fails to allege any specifics regarding her own transaction"); see also Naporano, 79 F. Supp. 2d at 511 (holding that plaintiff's "generalized pleadings resemble vague pleadings that the Third Circuit has rejected"); Wolfe v. Noble Learning Communities, Inc., No. 06-3921, 2006 WL 3825137, at *2 (D.N.J. Dec. 26, 2006) (requiring plaintiffs to replead and "specify what `ascertainable loss' Plaintiffs suffered" and "more clearly refer to the allegedly fraudulent statements on which they relied to their detriment") (emphasis added); Kirtley v.

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Wadekar, No. 05-5383, 2006 WL 2482939, at *3 (D.N.J. Aug. 25, 2006) (granting defendant's motion to dismiss because "Plaintiffs do not allege with particularity . . . exactly who bought exactly what product when, relying on what false representation made by whom"); Pacholec v. Home Depot USA, Inc., No. 06-CV-827, 2006 WL 2792788, at *2 (D.N.J. Sept. 26, 2006) (same). The same principles should be applied once again here, and Franulovic's Complaint should be dismissed. B. Many of the statements identified by Franulovic are either mere puffery or based on her own assessment of Enviga's value and therefore cannot form the basis of a CFA claim.

The CFA allows recovery only for false statements of fact ­ not mere statements of opinion or "puffery" typically found in advertisements. Because many of the statements

identified in Franulovic's Complaint represent opinion or "puffery" advertising, they cannot form the basis of a CFA claim. See N.J. Citizen Action v. Schering-Plough Corp., 842 A.2d 174, 177 (N.J. Super. Ct. App. Div. 2003) ("[O]ur Supreme Court has also recognized there is indeed a distinction between misrepresentations of fact actionable under the CFA and mere puffing about a product or a company that will not support relief.") (citing Rodio v. Smith, 587 A.2d 621 (N.J. 1991)); Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496, 501 ­ 505 (D.N.J. 2006) (granting motion to dismiss a CFA claim because allegedly misleading statements did not have the capacity to mislead and were not actionable as a matter of law). In New Jersey Citizen Action, the plaintiffs brought a class action against the manufacturer of the non-prescription allergy medication, Claritin. 842 A.2d 174. In their

complaint, the plaintiffs had argued that the defendant's advertising statements such as "you . . . can lead a normal nearly symptom-free life again" constituted a false promise guaranteeing total and universal effectiveness of the product. Id. at 177. Though the defendant's own scientific studies demonstrated that Claritin was only effective in approximately 50% of consumers, the 6

court affirmed the dismissal of the plaintiff's CFA claim as "meritless." In so holding, the court stated: This and similar statements in [the defendant's] advertising for these products are, simply put, not statements of fact, but are merely expressions in the nature of puffery and thus are not actionable. These statements, merely by the use of the word "you" and by the failure to include a disclaimer along the lines of "results may vary" are not transformed into a guarantee of universal and complete effectiveness and thus are not statements of fact actionable under the CFA. Id. at 176. In addition to allowing for "puffery," "[t]he CFA does not require such salesmanship to be accompanied by statistics about the product's effectiveness in order to avoid liability for false advertisement." N.J. Citizen Action v. Schering-Plough Corp., No. L-7838-01, 2002 WL

32344594, at *3 (N.J. Super. Ct. L. Div. May 12, 2002), aff'd, 842 A.2d 174 (N.J. Super. Ct. App. Div. 2003). The case for applying this rule is even stronger here, because the Enviga can's label states: "Three cans per day of Enviga have been shown to increase calorie burning by 60 ­ 100 calories in healthy normal weight 18 ­ 35 year olds. Individual results may vary."2

Franulovic, moreover, alleges that she read this portion of the can's label. See Compl. ¶ ("After Franulovic read the Enviga can label's representations about calorie burning, she increased her consumption to three cans per day . . ."). As in N.J. Citizen Action, therefore, this Court should disregard Franulovic's allegations that TCCC improperly advertised Enviga as universally effective but failed to disclose the specific details of the results of the Enviga clinical trial and

2

A copy of the text of the Enviga can label is attached hereto as Exhibit B, and the Court may properly consider this text on a motion to dismiss. See supra footnote 1. 7

other scientific studies on EGCG and caffeine.3 Thus, Franulovic fails to state a claim to the extent she relies on any of the following allegations, which either point to advertising puffery or are based on an alleged failure to disclose specific data that Franulovic contends demonstrates Enviga's alleged lack of universal effectiveness: Drinking Enviga is "much smarter than following fads, quick-fixes, and crash diets." Compl. ¶ 23 (puffery).4 Enviga "gives your body a little extra boost." Compl. ¶ 22 (puffery). Enviga contains the "powerful EGCG." Compl. ¶ 23 (puffery). "Enviga is the perfect refresher for you: everyday you do your bit to cut out or burn a few extra calories, Enviga is doing its little bit to help." Compl. ¶ 23 (puffery). "Be positive. Drink negative." Compl. ¶ 23 (puffery). "Invigorate your metabolism." Compl. ¶ 23 (puffery). TCCC "advertis[ed] Enviga without having prior substantiation for all advertising claims." Compl. ¶ 59(a) (failure to disclose data). TCCC advertised Enviga without disclosing "that the minimal study evidence showed that Enviga had a desirable effect only on a discreet and minor segment of the population." Compl. ¶ 59(c) (failure to disclose data). "Enviga is expected to have a comparable effect on individuals over 35." Compl. ¶ 23 (failure to disclose data).

In addition, Franulovic's allegation based on her subjective belief that Enviga is too expensive in relation to the benefits offered is not actionable because it is simply not based on a
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TCCC denies that Franulovic's allegations regarding the limitations of the relevant scientific studies have any merit. TCCC denies, for example, Franulovic's allegation that the available scientific evidence is not sufficient to demonstrate that Enviga will burn calories in individuals of various ages and body types. In addition to being puffery, the alleged statement is misquoted. The full sentence from the website that Plaintiff has incorporated into her Complaint reads: "It's a fact that incorporating balanced nutrition and more activity into your lifestyle is the best way to stay healthy ­ and much smarter than following fads, quick-fixes and crash diets." See http://www.enviga.com/#Benefits (last viewed on August 20, 2007). 8

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misrepresentation of fact contained in any Enviga advertising. Franulovic alleges that TCCC violated the CFA by failing to disclose the alleged fact that it requires burning approximately 3500 calories to lose one pound, and that it would therefore require at least 100 cans of Enviga at a cost of approximately $150 to lose one pound. See Compl. ¶ 32 ­ 33. This allegation is based on (i) the alleged fact that losing one pound requires burning 3500 calories, a fact knowable to anyone and not contained in any Enviga advertising; (ii) the price of a can of Enviga, which is obviously disclosed at the time of sale; and (iii) the information Franulovic admittedly read on the back of the can disclosing that the study subjects consumed three cans of Enviga per day and burned an additional 100 calories. See Compl. ¶ 46. Franulovic's belief that Enviga's 100 calorie per day benefit is inadequate in relation to the purchase price is not a basis for a claim under the CFA because this allegation does not involve any misrepresentation or omission by TCCC. Franulovic, in other words, cannot state a claim under the CFA by pointing to any alleged misrepresentation and claiming that she was misled. Rather, the Court must determine in the first instance whether the statements have the capacity to mislead the average consumer under the CFA. See Adamson, 463 F. Supp. 2d at 501 ­ 505 (granting motion to dismiss CFA claim because the allegedly misleading statements were not actionable as a matter of law). Franulovic's allegation regarding the value of Enviga in relation to the price paid is not based on any statements that have the capacity to mislead. Rather, this allegation is based entirely on Franulovic's mathematical calculations and subjective assessment of the product's value. Accordingly, this Court should dismiss Franulovic's CFA claim to the extent it relies on the following allegation: TCCC "[f]ail[ed] to disclose that it would be necessary to spend weeks drinking three cans of Enviga daily ­ at least 100 cans at an approximate cost of $150 ­ just to enjoy a possible loss of one pound." Compl. ¶ 59(e).

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Finally, Franulovic's allegation that TCCC "advertis[ed] Enviga without the material fact that one would have to drink three cans daily for as long as the person wanted to have whatever effect might occur," Compl. ¶ 58(d), is simply incorrect. As noted above, the Enviga can's label states that "three cans per day of Enviga have been shown" to increase calorie burning in the Enviga clinical trial. In addition, Franulovic alleges that Coke's claims concerning Enviga are "based on a novel claim [of] drinking three cans of Enviga (over a quart) every day," Compl. ¶ 19, and that "[a]fter Franulovic read the Enviga can label's representations about calorie burning, she increased her consumption to three cans per day." Compl. ¶ 46. Thus, any claim based on the alleged failure to disclose that "one would have to drink three cans daily" must be dismissed. II. FRANULOVIC FAILS TO STATE A CLAIM FOR ALLEGED VIOLATIONS OF THE NEW JERSEY FOOD AND DRUG LAWS. In Count II, Franulovic continues to assert the novel claim from CSPI's original complaint by alleging a violation of the CFA based on unspecified violations of the "New Jersey Food and Drug Laws," a completely separate statutory scheme from the CFA. Compare N.J.S.A. § 24:17-1 et seq. (Food and Drug) with N.J.S.A. § 56:8-1 et seq. Franulovic appears to claim that an alleged violation of the New Jersey Food and Drug Laws is a per se violation of the CFA. Whatever Franulovic intended to plead, she fails to state any viable claim in Count II for three reasons. First, Count II is a claim under the CFA and, as discussed above, it should be dismissed for failure to plead with particularity as required by Rule 9(b). Regarding the

Defendants' alleged conduct, Franulovic alleges only that "for the reasons set out above, defendants violated the New Jersey food and drug law by misbranding Enviga." Compl. ¶ 62. Franulovic does not specify which particular portions of the food and drug laws or regulations allegedly have been violated or the specific conduct that results in the alleged violation. Nor

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does she explain how this alleged violation resulted in an ascertainable loss to Franulovic or anyone else. Rule 9(b), therefore, warrants the dismissal of Count II. Second, the CFA does not provide a remedy for conduct that might be unlawful under the New Jersey Food and Drug Laws. See N.J.S.A. § 56:8-2 et seq. The CFA provides a remedy for a private plaintiff that "suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act . . . ." N.J.S.A. § 56:8-19 (emphasis added). Franulovic appears to allege that a violation of the New Jersey Food and Drug Laws is a per se violation of the CFA. This claim has no basis in New Jersey law, because only a violation of the specific regulations promulgated under the CFA results in a per se violation of the CFA. See Monogram Credit Card Bank of Ga. v. Tennesen, 914 A.2d 847, 853 (N.J. Super. Ct. App. Div. 2007) ("The third category of unlawful acts consists of violations of specific regulations promulgated under the [CFA]. In those instances, intent is not an element of the unlawful practice, and the regulations impose strict liability for such violations.") (emphasis added) (quoting Cox v. Sears Roebuck & Co., 647 A.2d 454 (N.J. 1994)). The New Jersey Food and Drug Laws do not fall into this limited category of regulations promulgated under the CFA, and Franulovic, therefore, fails to state a claim. Third, the New Jersey Food and Drug Laws do not provide Franulovic with a private right of action. Rather, under the statute's plain language, civil actions for violations of the New Jersey Food and Drug Laws must be brought by either the State Department of Health or by a local health board. N.J.S.A. § 24:17-5 ("any and all penalties prescribed by any provision of this subtitle shall be sued for and recovered in a civil action by and in the name of the State Department of Health, or by and in the name of the local board of health . . .") (emphasis added).

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Perhaps in recognition of this fact, Franulovic has attempted to bootstrap the requirements of the New Jersey Food and Drug Laws into the Consumer Fraud Act without any authority or precedent for doing so. For the reasons stated above, such an attempt must fail, and Count II of the Complaint should be dismissed. CONCLUSION Franulovic's Complaint fails to satisfy the heightened pleading requirements imposed by FED. R. CIV. P. 9(b), because it alleges only that she "saw advertisements for Enviga" prior to her purchase. She fails to identify, among other necessary facts, the specific advertisement(s) she saw, when and where she saw it, and the details of the purchases that followed. Franulovic also improperly relies on general advertising puffery and her own subjective assessment of Enviga's alleged value as support for her claim under the CFA. In addition, alleged violations of the New Jersey Food and Drug Law cannot form the basis of a CFA claim because the food and drug laws are not among the specific regulations promulgated pursuant to the CFA and the food and drug laws do not otherwise provide a private right of action. Accordingly, The Coca-Cola Company respectfully requests dismissal of the Second Amended Class Action Complaint in its entirety. Dated: August 27, 2007. McCARTER & ENGLISH, LLP /s/ Peter J. Boyer GITA F. ROTHSCHILD PETER J. BOYER Four Gateway Center 100 Mulberry Street Newark, NJ 07102 [phone] [phone] (fax) JANE F. THORPE (admitted pro hac vice) SCOTT A. ELDER (admitted pro hac vice) ALSTON & BIRD, LLP 12

1201 West Peachtree Street Atlanta, Georgia 30309-3424 [phone] [phone] (fax) Attorneys for Defendant The Coca-Cola Company

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