The Ninth Circuit Court of Appeals’ three judge panel has upheld a lower court’s dismissal of a California woman’s lawsuit against Dr Pepper/Seven Up Inc. for alleged false or misleading advertising. Shana Becerra of Santa Rosa, California claimed the Diet Dr Pepper’s beverage branding and marketing implied it would help people lose weight, according to court documents filed Monday.
Becerra filed her original lawsuit against Dr Pepper’s former parent company in US District Court in October of 2017. The Bay Area resident sought class-action status on behalf of all Californians with similar grievances against Dr Pepper.
In her original complaint, Becerra said she has struggled with obesity since she was a child. She claimed she had purchased and drank Diet Dr Pepper for more than 13 years believing it would help her manage her weight, adding that she “did not receive what she paid for.” A judge ultimately ruled against Becerra, who eventually appealed the case to the Ninth District Court, court records show.
In her latest appeal, Becerra claimed Diet Dr Pepper’s marketing implied the beverage helps people lose or manage their weight. She argued the soda’s use of Aspartame, a calorie-free artificial sweetener, in place of sugar, actually caused people like her to gain weight by interfering “with the body’s ability to properly metabolize calories.”
“Due to the prominent use of the term ‘diet’ in the product’s name, Diet Dr Pepper consumers reasonably believe that the product will assist in weight loss, or at least healthy weight management, for example, by not causing weight gain,” the plaintiff and her attorneys contended.
Last month, however, the Ninth Circuit supported the lower court’s ruling arguing “no reasonable consumer would believe that the word ‘diet’ in a soft drink’s brand name promises weight loss or healthy weight management,” adding that Becerra’s suit failed to show that “members of the public are likely to be deceived.”
“Diet soft drinks are common in the marketplace and the prevalent understanding of the term in that context is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart,” Judge Jay S. Bybee wrote in the court’s opinion on the matter. “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 Ninth Circuit judges also threw out an additional appeal filed by Becerra’s legal team in a similar separate lawsuit against the Coca-Cola Co.
In that case, Becerra’s attorneys were representing two other clients, Evan Geffner and Ivan Babsin. They argued Coca-Cola’s Diet Coke soft drink presented similar misleading advertising. The Diet Coke suit was originally filed in the Second US Circuit Court of Appeals in New York, which dismissed the case in June. Becerra’s name was added to the Coca-Cola suit when it was appealed to the Ninth Circuit, which opted against ruling on the case due to “lack of jurisdiction.”
Coca-Cola and Becerra’s attorneys did not immediately respond to CNN Business’ request for comment on the case.
Evan Young, an attorney for Dr Pepper/Seven Up Inc., expressed satisfaction with his case’s outcome.
“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,” Young said in a statement emailed to CNN Business.
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