The U.S. Court of Appeals for the Second Circuit has denied a plaintiff’s appeal aiming to overturn a lower court’s dismissal of a lawsuit alleging that Diet Dr Pepper is misleadingly named because it does not cause weight loss. Excevarria v. Dr Pepper Snapple Grp., Inc., No. 18-1492 (2nd Cir., entered April 17, 2019).

“Plaintiffs argue that the use of the word ‘diet’ in Diet Dr Pepper is misleading because it conveys certain promises about the beverage’s usefulness in assisting with weight loss or healthy weight management, when in fact (Plaintiffs allege, based on a number of studies) the aspartame in Diet Dr Pepper likely causes weight gain,” the appeals court stated in its brief opinion. “However, even assuming (without deciding) that Plaintiffs are right that a reasonable consumer would understand the word ‘diet’ to convey promises about weight loss or management, they have still failed to state a claim here. None of the studies cited by the Complaint or the [Proposed First Amended Complaint (PFAC)] establish a causal relationship between aspartame and weight gain, as has been determined by a number of courts in substantially identical cases involving complaints that cite the same studies. [] As a result, neither the Complaint nor the PFAC state a claim, because Plaintiffs cannot raise a plausible inference that ‘Diet Dr Pepper’ as a brand name is false or misleading.”

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