“diet” isn’t misleading for soda even if surveys say it is

Becerra v. Dr Pepper/Seven Up, Inc., 2019 WL 7287554, No. 18-16721 (9^th Cir. Dec. 30, 2019)Becerra alleged that Dr Pepper violated the usual California consumer-fraud laws by branding Diet Dr Pepper using the word “diet.” She cited dictionary definitions to support her allegation that reasonable consumers understand the word “diet” to promise assistance in weight loss. She included references to print and television advertisements and online articles from the American Beverage Association as further support of the allegation that consumers understand “diet” soft drinks to offer certain health benefits. And she summarized the results of a survey of California and national consumers that allegedly supported her claim.

“The district court found that no reasonable consumer would believe that the word ‘diet’ in a soft drink’s brand name promises weight loss or healthy weight management and, even if a reasonable consumer would believe that, Becerra had not sufficiently alleged that any such promise was false because of insufficient allegations that aspartame consumption causes weight gain.” The court of appeals affirmed on the first ground and didn’t reach the second.

Dictionary definitions: focused on the meaning of “diet” as verb or noun, not as adjective/proper noun, and Dr Pepper’s use of the word as the latter “puts the word in a different light.” Adjective definitions work differently, e.g., Merriam Webster defines the adjective as “reduced in or free from calories[—]a diet soft drink.” In context, “no reasonable consumer would assume that Diet Dr Pepper’s use of the term ‘diet’ promises weight loss or management” but instead the term “is understood as a relative claim about the calorie content of that soft drink compared to the same brand’s ‘regular’ (full-caloric) option.” [The problem is really one of implication—like “low tar” for cigarettes.  The point of having fewer calories is to help with weight control; no one cares about calories in the abstract.  Interesting that courts in tobacco cases fully recognize this but courts in diet cases don’t.] So too with the proper noun version: “In common usage, consumers know that Diet Dr Pepper is a different product from Dr Pepper—different not only in name, but in packaging and, importantly, taste.”

Becerra argued that she alleged a plausible misunderstanding of the word, but any such misunderstanding was unreasonable. “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. 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.”