Metropolitan News-Enterprise


Tuesday, December 31, 2019


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Ninth Circuit:

Labeling of Diet Dr Pepper Doesn’t Breach Consumer Laws

Circuit Judge Bybee Says Public Not Apt to Perceive the Soft Drinks As Diet Aids


By a MetNews Staff Writer


Diet Dr Pepper is not fraudulently labeled, the Ninth U.S. Circuit Court of Appeals held yesterday, rejecting the claim that there is an implied representation that the beverage is useful as a dieting aid.

“Diet soft drinks are common in the marketplace and the prevalent understanding of the term in that context is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart,” Judge Jay Bybee wrote for a three-judge panel. “Just because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive.”

The opinion affirms the action by District Court Judge William Horsley Orrick of the Northern District of California in dismissing the third amended complaint (“TAC”) filed by Shana Becerra, a woman who claims she bought the drink thinking it would help her lose weight when in fact, she claims, the aspartame used as a sweetener causes weight gain. Her claims were brought under California consumer statutes, with the federal courts having diversity jurisdiction.

Becerra’s Complaint

Becerra, who sought to bring a class action against Dr Pepper/Seven Up. Inc. (“DPSLF”), alleged:

“1. DPSU’s popular beverage. Diet Dr. Pepper, is sweetened with aspartame, a non-caloric sweetener, rather than sugar. Because of the product’s use of the term ‘diet,’ its lack  of calories, and the manner in which DPSLF markets it, consumers reasonably believe that  drinking Diet Dr. Pepper will assist in weight loss or healthy weight management.

“2. Scientific evidence demonstrates tins is wrong because nonnutritive sweeteners  like aspartame interfere with the body’s ability to properly metabolize calories, leading to  weight gain and increased risk of metabolic disease, diabetes, and cardiovascular disease.

“3. Accordingly, DPSU’s marketing Diet Dr. Pepper as ‘diet’ is false, misleading,  and unlawful.”

Orrick’s Ruling

Orrick ruled on April 21, 2018:

“Becerra does not plausibly allege that the term “diet” as used in “Diet Dr Pepper” brand name is false or misleading, or that the science supports causation between aspartame and weight gain.”

With respect to Becerra’s contention that persons who consume Diet Dr Pepper are apt to experience an increase in weight, Orrick said:

“Becerra provides studies showing that aspartame may increase the risks of weight gain and disease. But she errs when she contends that these studies sufficiently establish the plausibility of her claims.”

The judge remarked:

“Continued scientific research on aspartame may reach the conclusions Becerra would like to draw, but today, the TAC lacks a plausible claim to relief.”

Bybee’s Opinion

Bybee said dismissal may be based solely on the implausibility of the claim that use of the word “diet” will mislead consumers, and opted not to discuss Becerra’s claim that Diet Dr Pepper can be a cause of obesity.

He wrote:

“We will begin with the observation that Becerra’s citations to dictionary definitions of the word ‘diet’ are citations to the word when used as a verb or noun, as in ‘he is dieting’ or ‘she is starting a diet.’ But, as Dr Pepper and the district court noted, ‘diet’ in Diet Dr Pepper is either an adjective or a proper noun, and that puts the word in a different light. Becerra’s selective quotations omit the definitions of ‘diet’ as an adjective and the frequent usage of ‘diet soft drinks’ as the primary example of the word’s usage in that context. For example, the Merriam Webster Dictionary defines the adjective ‘diet’ as ‘reduced in or free from calories[—]a diet soft drink.’ ”

Physical Fitness

Becerra also contended that the use of physically fit models in Diet Dr Pepper aids implies that a connection between drinking the beverage and fitness. Bybee quoted a Second Circuit opinion as saying:

“The use of physically fit and attractive models using and enjoying advertised products is so ubiquitous that it cannot be reasonably understood to convey any specific meaning at all.”

The case is Becerra v. Dr Pepper/Seven Up, 18-16721.

A footnote says:

“Becerra’s suit against Dr. Pepper in California was part of a series of suits brought against soda manufacturers. Becerra also filed suit in California against Coca-Cola. We dismiss that suit on jurisdictional grounds in a memorandum decision filed concurrently with this opinion.”

However, no memoranda opinions were filed by the Ninth Circuit yesterday.

The footnote also recites that the Second Circuit has dismissed three similar actions brought under New York law.


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