‘Diet’ soft drinks do not falsely advertise weight loss, appeals court in SF says

A soft drink label that features the phrase “diet” — Diet Dr Pepper or Diet Coke, for instance — isn’t a promise that can assist you lose weight or hold it underneath management.

Not in accordance with a federal appeals court, anyway.

“The prevalent understanding of the term in (the marketplace) is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart,” the Ninth U.S. Circuit Court of Appeals in San Francisco mentioned Monday in a ruling refusing to reinstate a fraud go well with in opposition to the makers of Diet Dr Pepper.

“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 court mentioned.

Last week, the identical court tersely dismissed an attraction by the identical plaintiff in opposition to the makers of Diet Coke. In June, the Second U.S. Circuit Court of Appeals in New York pulled the plug on fraud claims underneath New York legislation introduced by among the identical legislation companies in opposition to Diet Coke. That court mentioned a food plan label “refers specifically to the drink’s low calories content. It does not convey a general weight-loss promise.”

The Bay Area fits have been filed in 2017 by Shana Becerra of Santa Rosa, who mentioned she had been buying and consuming Diet Dr Pepper for greater than 13 years and “did not receive what she paid for” due to misleading promoting. She proposed a category motion on behalf of all Californians who had purchased the beverage since October 2013.

In addition to false promoting, the go well with claimed that the soft drink’s synthetic sweetener, aspartame, really brought about customers to realize weight.

Aspartame, an amino acid product, has come underneath assault by some shopper teams and was faraway from Diet Pepsi in 2015, then restored in 2018. It continues for use in different low-calorie merchandise and has been accepted by the U.S. Food and Drug Administration.

Becerra’s go well with mentioned research have proven aspartame can contribute to gaining weight, however U.S. District Judge William Orrick III mentioned in an August 2018 ruling that not one of the research confirmed that the sweetener really brought about weight positive aspects. In Monday’s ruling, the appeals court mentioned it did not have to think about aspartame’s impact as a result of the lawsuit didn’t allege false promoting.

While “diet,” as a noun, means a plan to lose weight, the phrase used is an adjective — as in “diet soft drink” — carries a dictionary definition of a product with fewer or no energy, Judge Jay Bybee mentioned in the Three-Zero ruling.

In that context, “no reasonable consumer would assume that Dr Diet Pepper’s use of the term ’diet’ promises weight loss or management,” Bybee mentioned.

He additionally mentioned adverts displaying match, enticing fashions did not quantity to a false promise that buyers might reshape their our bodies by downing Diet Dr Pepper.

As the federal court in New York noticed in the Diet Coke case, Bybee mentioned, commercials displaying slim and enticing fashions utilizing marketed merchandise have change into so commonplace that they “cannot be reasonably understood to convey any specific meaning at all.”

Bob Egelko is a San Francisco Chronicle workers author. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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