“Not false or deceptive”: Court dismisses case against Diet Dr Pepper name

06 Jan 2020 --- The US Court of Appeals for the Ninth Circuit has dismissed class action arguing that Diet Dr Pepper, a Keurig Dr Pepper brand, violates California consumer-fraud laws due to its use of the word “diet.” The panel held that reasonable consumers are unlikely to understand that the use of “diet” in the brand name promises weight loss, healthy weight management or other health benefits. This is the latest in a long line of unsuccessful lawsuits against soft drink companies over the use of a diet claim and highlights the ongoing contention surrounding some health claims.

“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. 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,” writes Jay Bybee, Circuit Judge.

The complaint was first filed in October 2018 by Shana Becerra, arguing that the label “diet” misled Diet Dr Pepper consumers by promising that the product would “assist in weight loss” or at least “not cause weight gain.” She cited several studies investigating aspartame – which is used in Diet Dr Pepper – to the claim that the artificial sweetener leads to weight gain and has no benefit for weight loss. Therefore, she says that the promise allegedly inherent to the word “diet” is false and misleading. This complaint was dismissed by the district court on multiple occasions before being brought to the Ninth Circuit.

Nonetheless, a major review last year found that there is no compelling evidence that non-sugar sweeteners (NNS) improve health or help people to lose weight. The review, which was prepared to inform the World Health Organization (WHO)’s guideline on NSS usage, analyzed 56 studies comparing no intake or lower intake of NSS with higher intake in healthy adults and children.

A variety of negative consequences has been connected to soft drinks and aspartame.It was found that there were no differences between people who were exposed or unexposed to NSS in terms of health outcomes such as body weight, diabetes or glycemic control, appetite, blood pressure and bladder or lower urinary tract cancer risk.

Additionally, a variety of negative consequences has been connected to soft drinks and aspartame. In September, it was found that soft drink consumption, including both artificially- and sugar-sweetened beverages, is associated with an increased risk of overall death. The previous month, a separate study argued that aspartame has not been adequately proven to be safe for human consumption. The researchers warned that the food industry needs to progressively diminish the sweetness of its products, rather than shifting to sweeteners.

However, another study found that NNS have a negligible effect on the gut microbiome and are not significantly linked to cancer and diabetes risk, as long as their consumption is in line with the ADI (Acceptable Daily Intake) recommended intake.

A long debate
Becerra’s argument against Diet Dr Pepper is multipronged, including her use of dictionary definitions of “diet” to support her allegation that reasonable consumers understand the word “diet” to promise assistance in weight loss. However, Bybee notes that Becerra’s theory revolves around the use of “diet” as a verb or noun, instead of as an adjective or a proper noun.

“In context, the use of ‘diet’ in a soft drink’s brand name is understood as a relative claim about the calorie content of that soft drink compared to the same brand’s ‘regular’ (full-caloric) option. In common usage, consumers know that Diet Dr Pepper is a different product from Dr Pepper – different not only in name, but in packaging and, importantly, taste,” continues Bybee.

Becerra also used a variety of Dr Pepper print and television advertisements dating back to the 1970s, which were found to either be irrelevant to her claims or made no reference to weight loss or other health benefits. She also claimed that the use of attractive, fit models in the advertisements implies that Diet Dr Pepper will help its consumers achieve those bodies.Becerra failed to sufficiently allege that consumers understand the word “diet” in Diet Dr Pepper to promise weight loss or health benefits.

Additionally, she cited the results of a 2018 survey of 400 California soft-drink consumers and 400 nationwide soft-drink consumers. Becerra said that the survey “confirms that the vast majority of consumers expect a diet soft drink to either help them lose or maintain weight or not affect their weight.”

However, the district court noted that while it is difficult to tell what questions the survey asked to reach its conclusions, it appears to have asked four questions to gauge consumer expectations of diet soft drinks related to one’s weight. Of the California consumers, only 12.5 percent expected diet soft drinks to help them lose weight (compared to 15 percent nationwide).

“Becerra has failed to sufficiently allege that reasonable consumers understand the word ‘diet’ in Diet Dr Pepper’s brand name to promise weight loss, healthy weight management, or other health benefits. Accordingly, Becerra has not sufficiently alleged that Diet Dr Pepper’s labeling is false or misleading and dismissal was therefore proper,” concludes Bybee.

The marketing tactics of soft drink companies also came under criticism last month when uncovered internal The Coca-Cola Company documents from 2013 and 2014 revealed how the beverage giant intended to use public relations campaigns to influence teenagers’ perceptions of the health risks of Coca-Cola products.

Edited by Katherine Durrell

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