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A Miami consumer attorney has filed a lawsuit against Atlanta-based Coca-Cola, claiming the soda giant engaged in deceptive trade practices by not telling the public that Diet Coke sold through store fountains is different from the same product sold in cans and bottles. Lance A. Harke of Harke & Clasby filed the suit in Miami-Dade Circuit Court in March on behalf of Bartimous Berry, a Miami longshoreman. He is seeking class action status. Dan Schafer, a company spokesman in Atlanta, called the suit “frivolous and without merit.” “We will contest it vigorously,” he said Monday. Coke’s South Florida counsel, Steven E. Siff, a partner at McDermott Will & Emery in Miami, declined comment. The lawsuit is one of several similar actions filed nationwide against Coca-Cola. The suit claims the company uses a saccharin and aspartame mix rather than just aspartame in the fountain version of the world’s most popular diet soda. The lawsuit was filed under the Florida Deceptive and Unfair Trade Practices Act. Saccharin was once thought to cause cancer in laboratory rats. For years, the Food and Drug Administration required a warning label on all products containing the artificial sweetener, but later studies led to President Bill Clinton signing a bill allowing no label. “There are lots of consumers who don’t have interest in drinking a saccharin beverage,” Harke said. “But the primary problem is that the company is selling something different from what they say they’re selling … Coke advertises the product in a ‘unified’ manner — you’d have to be a lawyer or scientist to somehow dig for the information that the formulation is very different for fountain Diet Coke. “But there are numerous point-of-sale opportunities, such as at or near the soda fountain, on the cups, at the check-out counters, in the advertising campaigns generally in print and TV media, lots of ways to get the information out — if Coke wanted to,” he said. Coca-Cola acknowledges on its Internet site that it uses a saccharin/aspartame mix in the fountain version of its soda. “Why is the U.S. fountain version of Diet Coke sweetened with aspartame and saccharin?” is how the question is posed on the Web site. “Because aspartame by itself is heat and pH sensitive (meaning it loses its sweetness over time), the concentrated fountain syrup causes aspartame to lose its sweetness faster than it would in a finished beverage,” the Web site says. “Fountain diet drinks, therefore, are sweetened with a blend of aspartame and saccharin to assure maximum product quality.” Harke said that Coca-Cola added that the company’s Internet site’s disclosure, on a frequently asked questions page, came shortly after one of the lawsuits was filed over the sweetener. The lawsuit seeks to include everyone who bought Diet Coke from a fountain in Florida between Nov. 30, 1984, and March 12, 2004, the day the lawsuit was filed. According to the complaint, before November 1984, Coca-Cola sweetened all Diet Coke with saccharin or a mix of both saccharin and aspartame. In the 1970s, concerns were raised that saccharin causes cancer and, by the 1980s, the FDA issued a requirement for a warning label on all saccharin products cautioning that the artificial sweetener caused cancer in lab rats. After that, Coca-Cola publicly announced it was switching to NutraSweet, the brand name for aspartame. Initially, Coca-Cola included the NutraSweet logo on its diet sodas and prominently displayed it in television and print ads. But according to the lawsuit, sometime in 1993 some of the ads began to say in small print that the fountain version was not sweetened with 100 percent aspartame; the statement did not mention saccharin. Once Coca-Cola began using generic aspartame in the late 1980s or early 1990s, the language in the ads about a difference in the fountain version of the drink disappeared, according to the lawsuit. “They’re saving money on this and cheating their customers,” Harke said, because saccharin is cheaper than aspartame. A lawsuit filed in Illinois was settled a few years ago and others filed across the country are in the preliminary stages, Harke said.

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