On December 30, 2019, the Ninth Circuit held that Dr. Pepper’s use of the word “diet” to describe one of its soft drinks was not an implicit weight-loss promise that would deceive a reasonable consumer.

• In October 2017, Plaintiff Shana Becerra sued Dr. Pepper/Seven Up, Inc. in the Northern District of California, alleging that the company violated various California consumer protection laws by using the word “diet” in its product branding. Specifically, she alleged that the Diet Dr. Pepper label misled consumers by promising that the soft drink would assist in weight loss or, at a minimum, not cause weight gain. She relied on studies to argue that the artificial sweetener in Diet Dr. Pepper was likely to cause weight gain or posed no weight-loss benefit.
• The district court granted Dr. Pepper’s motion to dismiss, concluding that no reasonable consumer would believe that the word “diet” on a soft drink label promises weight loss or healthy weight management. Even if that were not the case, the court held that the plaintiff had not sufficiently alleged that any such promise was false, since she failed to plead adequate facts showing that aspartame caused weight gain. The court dismissed her claims with prejudice.
• In affirming the district court on appeal, the Ninth Circuit addressed only whether the word “diet” would mislead a reasonable consumer and declined to consider whether the plaintiff adequately alleged that aspartame caused weight gain.
• The court relied on dictionary definitions of the word “diet” and the context in which that term was used to conclude that no reasonable consumer would believe that a “diet” soft drink promises weight loss or management. Instead, the word “diet” is understood as a relative claim about the calorie count of a diet soft drink as compared to the regular version.
• The court also rejected the plaintiff’s argument that her “plausible misunderstanding” of the word “diet” could render the label actionable, concluding that the reasonable consumer test requires that a “significant portion of the general consuming public” could be misled.
• The court also rejected the plaintiff’s use of a survey showing that over seventy percent of California consumers expected diet soft drinks to help them lose or maintain weight, as that survey did not address whether a reasonable consumer would understand “diet” to be a relative claim in the soft drink context.
• The Ninth Circuit’s decision follows the Second Circuit’s recent dismissal of similar “diet soft drink” complaints under New York’s consumer fraud laws. See Geffner v. Coca-Cola Co., 928 F.3d 198 (2d Cir. 2019) (per curiam). Read the Ninth Circuit’s decision here.