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Home » Diet » Nothing Deceptive With "Diet" Drinks, Says The Ninth Circuit – Consumer Protection – United States – Mondaq News Alerts

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The Ninth Circuit affirmed the dismissal of a complaint againstDr Pepper alleging that using the word "DIET" in the name"Diet Dr Pepper" was deceptive under Californiaconsumer-fraud statutes. The court looked at the complaint'sallegations "taken together," and held they "fail tosufficiently allege that reasonable consumers read the word'diet' in a soft drink's brand name to promise weightloss, healthy weight management, or other health benefits."And "[w]ithout this piece of the puzzle," the NinthCircuit concluded, the district court properly dismissed plaintiffBecerra's consumer-fraud claims.

Becerra's essential allegation was that the word"DIET" in a soda's name is taken by consumers topromise weight loss (or at least weight management). The districtcourt dismissed her complaint twice without prejudice for failingto state a claim. Despite several amendments to the complaint tomake additional allegations to avoid dismissal, Becerra was neverable to survive a motion to dismiss. Despite additional allegationsregarding three types of evidence, namely: (1) dictionarydefinitions of the word "diet," (2) print and televisionadvertisements referring to consumers' understanding that"diet" soft drinks offer certain health benefits; and (3)two online articles from the American Beverage Association("ABA") to support her reading of the word"diet," the third amended complaint was dismissed withprejudice. Becerra appealed, and the Ninth Circuit reviewedthe lower court's decision de novo.

Claims surrounding fraud or mistake, the court noted, aresubject to a "heightened pleading standard" under theFederal Rules of Civil Procedure. They must "state withparticularity the circumstances constituting fraud ormistake," which includes "the who, what, when, where, andhow of the misconduct" occurred. In other words, the plaintiffmust specify "what is false or misleading about a statement,and why it is false." Further, the court recognized thatit's not enough merely to allege the possibility ofdeception, or to show that some consumers may be deceived.Rather, the California statutes involved in the case are governedby the "reasonable consumer" test, and the plaintiff wasrequired to "show that members of the public arelikely to be deceived"meaning there was"a probability 'that a significant portion of thegeneral consuming public or of targeted consumers, actingreasonably in the circumstances, could be misled.'"(Emphasis added.) The court said that in this case, as a result,Becerra's consumer-fraud claims could survive a motion todismiss only if she could show two things: first, that a reasonableconsumer reading the word "diet" in Diet Dr Pepper'sname would take that to mean that the soda "promises"weight loss or healthy weight management; and second, that thispromise is false because aspartame (the artificial sweeter used inDiet Dr Pepper) actually causes weight gain. The court addressedonly the first allegationfinding that Diet Dr Pepper makesno promise of weight loss or weight managementand thus didnot reach the second.

The Ninth Circuit began by questioning the relevance ofBecerra's dictionary definitions. The court called thedefinitions "selective," noting that they related to"diet" when used in a different contextforexample, as a verb or noun in phrases like "he isdieting" or "she is starting a diet." Incontrast, the court noted, the word "diet" in "DietDr Pepper" is used as either an adjective or a propernoun"and that puts the word in a differentlight." Indeed, the court noted, Becerra omitted"the definitions of 'diet' as an adjective and thefrequent usage of 'diet soft drinks' as the primary exampleof the word's usage in that context." The court thendiscussed some of those definitions, which indicated that when"diet" is used as an adjective, it is a comparative termmeaning that the product contains fewer calories than theregular product. It said, for instance, that the MerriamWebster Dictionary defines the adjective "diet" as"reduced in or free from calories[]a diet softdrink." And it went on to cite three more dictionaries thatdefined "diet" in this comparativewayi.e., calling something a "diet" product meansonly that it has fewer calories (or less sugar or fat) than theregular version of the product. Thus, in the context that Dr Pepperuses the term, "diet" doesn't promise weight loss ormanagement, but only that Diet Dr Pepper has fewer calories thanregular Dr Pepper.

The Ninth Circuit then addressed Becerra's argument thateven if it was not the case that reasonable consumers understood"diet" in the way she had asserted, it was a plausiblemisunderstanding of the term. But the court foundthat argument unpersuasive for the same reason the court hadrejected a similar argument in Ebner v. Fresh, Inc., 838F.3d 958 (9th Cir. 2016).Ebner, the court noted,involved an assertion that the net weight listed on some lip balmtubes was deceptive because the design of the tubes left 25% of theproduct inaccessiblebut the Ebner court rejectedthat argument, saying that "the packaging was not deceptivejust because some consumers could unreasonably misunderstand theproduct." The court in this case found Ebner'slogic persuasive, saying that "[t]he same is true here"and adding that the "prevalent understanding" of the term"diet" in the soft drink context is only that the"diet" version of the soft drink has fewer calories thanthe "regular" version.

Turning to the advertisements on which Becerra allegedly relied,the Ninth Circuit found them largely irrelevant. In thecourt's view, the statements in the advertisements were mainlycomparative, implying not that people who drank Dr Pepper wouldlose weight but that Diet Dr Pepper tastes more like its"regular" counterpart than other diet soft drinksdo. Further, the court rejected Becerra's argument thatthe use of "attractive, fit models" in Diet DrPepper's advertisements implied that Diet Dr Pepper would helppeople who drank it "achieve those bodies." Relying onSecond Circuit precedent, the Ninth Circuit held that "[t]heuse of physically fit and attractive models using and enjoyingadvertised products is so ubiquitous that it cannot be reasonablyunderstood to convey any specific meaning at all."

The Ninth Circuit also rejected Becerra's assertion that twoABA articles showed that consumers understood the word"diet" to promise weight loss. As the court noted, thearticles emphasized that "other lifestyle changes beyondmerely drinking diet soft drinks are necessary to see weight-lossresults."

Finally, the Ninth Circuit did not consider the survey resultssummarized in Becerra's third amended complaint sufficient tosalvage her case. While the court recognized its obligation toaccept the complaint's allegations surrounding the survey astrue, the court still found that "reasonable consumers"would understand that "diet" in the soft drink contextwas "a relative claim about the calorie or sugar content ofthe product." Moreover, the court faulted the survey'sfailure to "address this understanding" or "theequally reasonable understanding" that drinking diet sodaswill result in weight loss only if the person consumes "fewercalories overall."

This case is Shana Becerra v. Dr Pepper/Seven Up, Inc.,No. 18-16721(9thCir.2019).

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Nothing Deceptive With "Diet" Drinks, Says The Ninth Circuit - Consumer Protection - United States - Mondaq News Alerts

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Home » Diet » Nothing Deceptive With "Diet" Drinks, Says The Ninth Circuit – Consumer Protection – United States – Mondaq News Alerts