Court Finds Diet Dr Pepper Does Not Deceive Consumers

By Jonathan Stempel | December 31, 2019

A U.S. federal appeals court on Monday said the maker of Diet Dr Pepper did not deceive consumers into thinking the soft drink promoted weight loss by including “diet” in its name, a decision that could doom a similar lawsuit over Diet Coke.

The 9th U.S. Circuit Court of Appeals rejected California resident Shana Becerra’s claim that Dr Pepper/Seven Up, now part of Keurig Dr Pepper Inc, misled consumers, including through ads featuring physically attractive models, and that its conduct violated California consumer fraud laws.

Becerra, who claimed to have struggled with obesity since childhood, relied on scientific evidence that she said linked aspartame, an artificial sweetener used in Diet Dr Pepper, to possible weight gain.

But in a 3-0 decision for the San Francisco-based court, Circuit Judge Jay Bybee said Becerra failed to show that reasonable consumers associated diet soda with health benefits.

“No reasonable consumer would assume that Diet Dr Pepper’s use of the term ‘diet’ promises weight loss or management,” Bybee wrote. “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.”

John Weston, one of Becerra’s lawyers, said he was disappointed with the decision.

Evan Young, a lawyer for Dr Pepper/Seven Up, in an email said people who drink Diet Dr Pepper know it is a calorie-free version of Dr Pepper.

“We appreciate that the Ninth Circuit has allowed common sense to prevail and that it rejected the attempt to complicate something that is so simple,” he added.

Monday’s decision upheld an August 2018 dismissal by U.S. District Judge William Orrick in San Francisco.

The 9th Circuit last week dismissed Becerra’s appeal in a similar case against Coca-Cola Co over Diet Coke, saying it lacked jurisdiction because the February 2018 dismissal by U.S. District Judge William Alsup in San Francisco was not final.

Alsup would be expected to apply the reasoning in Monday’s decision if Becerra pursued the Diet Coke case.

The federal appeals court in Manhattan earlier this year upheld dismissals of similar cases against Dr Pepper, Coca-Cola and PepsiCo Inc under New York consumer fraud laws.

The case is Becerra v Dr. Pepper/Seven Up Inc, 9th U.S. Circuit Court of Appeals, No. 18-16721.

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