By Celia Ampel, From Daily Business Review

Miami lawyers are suing the makers of Vita Coco coconut water, alleging packaging that says “Born in Brazil” is misleading because some products are manufactured in other countries.
The class action aims to follow the success of another Southern District of Florida lawsuit against Anheuser-Busch over its marketing of Beck’s Beer. The company agreed last year to pay about $20 million and change the beer’s packaging to settle claims that it led customers to believe Beck’s was brewed in Germany rather than St. Louis.
“The Southern District found that the term ‘originated in Germany’ was deceptive and could reasonably mislead a consumer about where the product was made,” said Richard Segal, who is representing the Vita Coco plaintiffs with Philippe Lieberman and Steve Silverman, all of Kluger Kaplan in Miami. ” ‘Born in Brazil’ is directly analogous to ‘originated in Germany.’ ”
The federal lawsuit against All Market Inc. covers unflavored Vita Coco coconut water. The plaintiffs claim the company used to make its products in Brazil using Brazilian coconuts, but it bamboozled customers into thinking they were still buying a Brazilian-made drink after moving production to Sri Lanka, the Philippines and other countries.
The packaging prominently displays the “Born in Brazil” wording, while the manufacturing location information is in a harder-to-see font, the complaint alleges. In a four-pack, the country of origin can’t be seen until a customer buys the coconut water and removes individual containers, Segal said.
The class action alleges the product is rendered worthless under the Florida Food Safety Act and similar state laws across the country because it is mislabeled.
Vita Coco spokesman Arthur Gallego said the company has openly discussed its global sourcing and production on its website, in the press and at events. Each beverage’s packaging complies with all U.S. Food and Drug Administration guidelines and clearly states the drink’s country of origin, he said.
“The phrase ‘Born in Brazil,’ which has been used in one form or another for approximately 10 years, is brand-centric copywriting, literally referring to the origins of the company,” Gallego said in an email.
The company filed a motion to dismiss the lawsuit May 13, arguing no reasonable consumer would take “Born in Brazil” to mean the product rather than the company was “born” there.
By contrast, the Beck’s Beer case involved specific statements that could be interpreted as objective fact, the motion argues.
That court found the combination of the phrases “Originated in Germany,” “Brewed under the German Purity Law of 1516” and “German Quality” created a specific impression that the beer was brewed in Germany under German law, which could be proven true or false, according to the defense motion filed by Melissa Pallett-Vasquez and Lori Lustrin of Bilzin Sumberg Baena Price & Axelrod in Miami and O’Melveny & Myers attorneys Scott Voelz in Los Angeles and Hannah Chanoine and Christopher Cogburn in New York.
The attorneys referred a request for comment to Gallego.
“This lawsuit is an insult to both the consumers who take the time to read food and beverage labels properly and the brands that work so hard to be honest with them,” Gallego said.
The company motion indicates some of the drink is still produced in Brazil.
The plaintiffs are now preparing their response to the motion to dismiss. Arguments will be heard by U.S. Senior District Judge James Lawrence King in Miami.
Segal said it is too early to know how many people might be members of the class, but “Vita Coco often flaunts that they have 60 percent of the market for coconut water in the United States, which is often referred to as a billion-dollar industry.”
Companies should be allowed to pay homage to their roots — as long as they do it without misleading shoppers, Segal said.
“This class action doesn’t dispute companies being able to talk about their heritage or where they started,” he said. “What it does specifically prevent and what we are trying to cure for the consumers out there is pure deception.”
IMAGE: Richard Segal of Kluger Kaplan. J. Albert Diaz

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