The U.S. Court of Appeals for the Second Circuit has affirmed a lower court's dismissal of a lawsuit alleging that the name "Diet Pepsi" misleads consumers into believing that the product will assist with weight loss. Manuel v. Pepsi-Cola Co., No. 18-1748 (2nd Cir., entered March 15, 2019). "The studies cited by the complaint establish, at most, that people who drink beverages containing non‐nutritive sweeteners continue to gain weight," the appeals court found. "None of the studies purports to establish a causal relationship between non‐nutritive sweeteners and weight gain to a degree that is sufficiently strong. Therefore, Plaintiffs cannot raise a plausible inference that the use of the word 'diet' is false, inaccurate, or misleading. Accordingly, the district court properly dismissed the complaint."
A California federal court has dismissed with prejudice a putative class action alleging that Diet Dr Pepper is falsely advertised as a weight-loss product. Becerra v. Dr Pepper/Seven Up, Inc., No. 17-5921 (N.D. Cal., entered August 21, 2018). The plaintiff alleged that the term “diet” leads consumers to believe the beverage is a weight-loss or weight-management product despite that aspartame could allegedly cause weight gain. The court, which previously dismissed the complaint three times, found implausible "that reasonable consumers would believe consuming Diet Dr Pepper leads to weight loss or healthy weight management absent a change in lifestyle.” The court held that the plaintiff again failed to plead facts that could pass a “reasonable consumer” test and that the plaintiff failed to sufficiently plead a causal link between aspartame and weight gain.
A federal court in New York has dismissed with prejudice a putative class action alleging that Pepsi-Cola Co. falsely and deceptively used the term "diet" for its Diet Pepsi, leading consumers to believe that the beverage would help them lose weight or assist with "healthy weight management." Manuel v. Pepsi-Cola Co., No. 17-7955 (S.D.N.Y., entered May 17, 2018). Following three federal district court dismissals of nearly identical claims, the court found that "no reasonable consumer would understand a soft drink labeled as 'diet' to be a weight-loss product." "'Diet' immediately precedes 'Pepsi,' and thereby connotes a relative health claim—that Diet Pepsi assists in weight management relative to regular Pepsi," the court held. Although "diet" is used to identify other weight-loss products, "in the context of soft drinks, the term unambiguously signals reduced calorie content relative to the non-diet version of the drink in question." Ruling that a cause of action for false or misleading…
A Missouri federal court has denied Dr Pepper Snapple Group Inc.’s motion to dismiss a putative class action alleging Canada Dry Ginger Ale is falsely labeled because it does not contain ginger. Webb v. Dr Pepper Snapple Grp. Inc., No. 17-0624 (W.D. Mo., entered April 25, 2018). The plaintiff alleged that although the labeling, packaging and marketing of the product includes the statement “Made from Real Ginger,” independent laboratory testing found no detectable ginger in the beverage. The lawsuit echoes similar putative class actions filed in California. The Missouri court rejected all of Dr Pepper Snapple Group’s arguments, finding the plaintiff had adequately pleaded each of the seven counts alleged, including violation of the Missouri Merchandising Practices Act, fraud and intentional misrepresentation.
The American Heart Association, Childhood Obesity Prevention Coalition and Anti-Hunger and Nutrition Coalition have filed a lawsuit to appeal and amend the ballot title and summary of an initiative that would ban Washington's local governments from levying new taxes on sugar-sweetened beverages (SSBs). In re Ballot Title & Summary for Initiative No. 1634, No. 18-2-01924-34 (Wash. Super. Ct., filed April 9, 2018). The petition alleges that after Seattle's SSB tax took effect January 1, 2018, beverage industry groups filed the initiative in an attempt to stop other jurisdictions from adopting similar taxes. The petition also alleges that the ballot title and summary are “misleading and prejudicial” because they purport to ban new taxes on "groceries," a measure that the advocacy groups predict would be “disfavored” by voters.
A California federal court has dismissed a putative class action against Dr Pepper Snapple Group without prejudice, finding the plaintiff may be able to amend her complaint to “plausibly allege” that aspartame causes weight gain. Becerra v. Dr Pepper Snapple Grp., No. 17-5921 (N.D. Cal., entered March 30, 2018). Although the plaintiff is not required to “scientifically prove causation at the pleading stage,” the court found, the studies she cited “do not allege causation at all—at best, they support merely a correlation or relationship between artificial sweeteners and weight gain, or risk of weight gain . . . [b]ut correlation is not causation, neither for purposes of science nor the law.” The court dismissed the plaintiff’s unfair competition claims, finding her “theory of deception fails to pass the ‘reasonable consumer’ test” because Diet Dr Pepper is not marketed as a weight-loss or weight-management product and is a “diet” product in relation…
The Seattle City Council has approved a tax on distributors of sugar-sweetened beverages (SSBs) proposed by the city’s mayor. SSBs covered by the tax include sports, fruit, energy and soft drinks as well as flavored syrups commonly used in coffee drinks. Baby formula, medications, weight-loss drinks, fruit juice and diet soft drinks are exempt from the tax. See Seattle Times, June 5, 2017. Issue 637
A study examining the health effects of sugary and artificially sweetened beverages has allegedly concluded that consumption of the latter was associated with an increased risk of stroke and dementia. Matthew P. Pase et al., “Sugar and Artificially Sweetened Beverages and the Risks of Incident Stroke and Dementia,” Stroke, May 2017. Based on data from more than 4,000 adults enrolled in Framingham Heart Study Offspring cohort, the study followed health outcomes for 10 years and purportedly accounted for confounding factors such as “age, sex, education (for analysis of dementia), caloric intake, diet quality, physical activity, and smoking.” The results apparently suggested that, when compared to those who abstained from artificially sweetened beverages, participants who imbibed up to six servings per day were at greater risk of stroke or dementia, with the strongest associations for ischemic stroke. “To our knowledge, our study is the first to report an association between daily…
A federal court has reportedly refused to dismiss a mislabeling class action alleging Dr Pepper’s Canada Dry Ginger Ale contains “real ginger” but dismissed the plaintiffs’ fraud claims with leave to amend. Fitzhenry-Russell v. Dr Pepper Snapple Grp., Inc., No. 170564 (N.D. Cal., motion hearing April 19, 2017). While the court found the plaintiffs’ labeling claims “plausible,” it rejected the fraud allegations for a lack of precision. The complaint asserts that the ginger ale’s label does not include “real ginger root” as an ingredient but lists chemical flavoring instead. A similar class action against Dr Pepper was transferred to California’s Northern District in April 2017; details on that action appear in Issue 628 of this Update. See Law360, April 19, 2017. Issue 632
Three plaintiffs have filed a putative class action against Dr Pepper Snapple Group, Inc., claiming that although the label on the company’s Canada Dry Ginger Ale product says “Made With Real Ginger,” the product contains “no detectable amount of ginger.” Hashemi v. Dr. Pepper Snapple Grp., Inc., No. 17-2042 (C.D. Cal., filed March 14, 2017). The plaintiffs argue that they hired an independent lab to test for ginger in the product, which is advertised on television with footage of the cans attached to ginger plants and a voice-over that asserts, “For refreshingly real ginger taste, grab a Canada Dry Ginger Ale. Real Ginger. Real Taste.” Seeking class certification, restitution, declaratory and injunctive relief, damages and attorney’s fees, the plaintiffs allege violations of the California and Colorado consumer-protection statutes as well as breaches of warranties, fraud and misrepresentation. Issue 628