In a complaint initially filed in October 2017, a California resident alleged 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.
But the US federal appeals court has upheld a 2018 verdict from the district court: saying that reasonable consumers would understand 'diet' to simply mean a low calorie drink.
Use of attractive models
The complaint, filed by Shana Becerra on behalf of herself and the general public, alleged that the label ‘diet’ promised a product that would assist in weight loss. The complaint also referenced several studies to allege that aspartame, the artificial sweetener used in Diet Dr Pepper, is ‘likely to cause weight gain’ and ‘poses no benefit for weight loss’.
The plaintiff also cited dictionary definitions to support her allegation that reasonable consumers understand the word ‘diet’ to promise assistance in weight loss; as well as referencing print and TV ads that linked the word ‘diet’ to health benefits – such as by using physically fit and attractive models.
But in a 3-0 decision, the appeals court said Becerra’s allegations failed to sufficiently allege that reasonable consumers read the word ‘diet’ in a soft drink’s brand name to promise weight loss or weight management.
“When considering the term in its proper context, no reasonable consumer would assume that Diet Dr Pepper’s use of the term “diet” promises weight loss or management,” wrote the opinion from Judge Bybee. “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” (fullcaloric) option.”
Drawing on the verdict of the district court, the appeals court agreed that the use of physically fit and attractive models was so ubiquitous that it could not be reasonably understood to convey any specific meaning. Meanwhile, the courts agreed that the plaintiff had provided insufficient allegations that aspartame causes weight gain.
What's in a name?
“We will begin with the observation that Becerra’s citations to dictionary definitions of the word “diet” are citations to the word when used as a verb or noun, as in “he is dieting” or “she is starting a diet.” But, as Dr Pepper and the district court noted, “diet” in Diet Dr Pepper is either an adjective or a proper noun, and that puts the word in a different light. Becerra’s selective quotations omit the definitions of “diet” as an adjective and the frequent usage of “diet soft drinks” as the primary example of the word’s usage in that context. For example, the Merriam Webster Dictionary defines the adjective “diet” as “reduced in or free from calories[—]a diet soft drink.” - Opinion by Judge Bybee
The case is Becerra v Dr. Pepper/Seven Up Inc, 9th U.S. Circuit Court of Appeals, No. 18-16721. Dr. Pepper is now part of Keurig Dr Pepper.