The Ninth Circuit affirmed the dismissal of a complaint against Dr Pepper alleging that using the word DIET in the name Diet Dr Pepper was deceptive under California consumer-fraud statutes. The court looked at the complaints allegations taken together, and held they fail to sufficiently allege that reasonable consumers read the word diet in a soft drinks brand name to promise weight loss, healthy weight management, or other health benefits. And [w]ithout this piece of the puzzle, the Ninth Circuit concluded, the district court properly dismissed plaintiff Becerras consumer-fraud claims.
Becerras essential allegation was that the word DIET in a sodas name is taken by consumers to promise weight loss (or at least weight management). The district court dismissed her complaint twice without prejudice for failing to state a claim. Despite several amendments to the complaint to make additional allegations to avoid dismissal, Becerra was never able to survive a motion to dismiss. Despite additional allegations regarding three types of evidence, namely: (1) dictionary definitions of the word diet, (2) print and television advertisements referring to consumers understanding that diet soft drinks offer certain health benefits; and (3) two online articles from the American Beverage Association (ABA) to support her reading of the word diet, the third amended complaint was dismissed with prejudice. Becerra appealed, and the Ninth Circuit reviewed the lower courts decision de novo.
Claims surrounding fraud or mistake, the court noted, are subject to a heightened pleading standard under the Federal Rules of Civil Procedure. They must state with particularity the circumstances constituting fraud or mistake, which includes the who, what, when, where, and how of the misconduct occurred. In other words, the plaintiff must specify what is false or misleading about a statement, and why it is false. Further, the court recognized that its not enough merely to allege the possibility of deception, or to show that some consumers may be deceived. Rather, the California statutes involved in the case are governed by the reasonable consumer test, and the plaintiff was required to show that members of the public are likely to be deceivedmeaning there was a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. (Emphasis added.) The court said that in this case, as a result, Becerras consumer-fraud claims could survive a motion to dismiss only if she could show two things: first, that a reasonable consumer reading the word diet in Diet Dr Peppers name would take that to mean that the soda promises weight loss or healthy weight management; and second, that this promise is false because aspartame (the artificial sweeter used in Diet Dr Pepper) actually causes weight gain. The court addressed only the first allegationfinding that Diet Dr Pepper makes no promise of weight loss or weight managementand thus did not reach the second.
The Ninth Circuit began by questioning the relevance of Becerras dictionary definitions. The court called the definitions selective, noting that they related to diet when used in a different contextfor example, as a verb or noun in phrases like he is dieting or she is starting a diet. In contrast, the court noted, the word diet in Diet Dr Pepper is used as either an adjective or a proper nounand that puts the word in a different light. Indeed, the court noted, Becerra omitted the definitions of diet as an adjective and the frequent usage of diet soft drinks as the primary example of the words usage in that context. The court then discussed some of those definitions, which indicated that when diet is used as an adjective, it is a comparative term meaning that the product contains fewer calories than the regular product. It said, for instance, that the Merriam Webster Dictionary defines the adjective diet as reduced in or free from calories[]a diet soft drink. And it went on to cite three more dictionaries that defined diet in this comparative wayi.e., calling something a diet product means only that it has fewer calories (or less sugar or fat) than the regular version of the product. Thus, in the context that Dr Pepper uses the term, diet doesnt promise weight loss or management, but only that Diet Dr Pepper has fewer calories than regular Dr Pepper.
The Ninth Circuit then addressed Becerras argument that even if it was not the case that reasonable consumers understood diet in the way she had asserted, it was a plausible misunderstanding of the term. But the court found that argument unpersuasive for the same reason the court had rejected a similar argument in Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016). Ebner, the court noted, involved an assertion that the net weight listed on some lip balm tubes was deceptive because the design of the tubes left 25% of the product inaccessiblebut the Ebner court rejected that argument, saying that the packaging was not deceptive just because some consumers could unreasonably misunderstand the product. The court in this case found Ebners logic persuasive, saying that [t]he same is true here and adding that the prevalent understanding of the term diet in the soft drink context is only that the diet version of the soft drink has fewer calories than the regular version.
Turning to the advertisements on which Becerra allegedly relied, the Ninth Circuit found them largely irrelevant. In the courts view, the statements in the advertisements were mainly comparative, implying not that people who drank Dr Pepper would lose weight but that Diet Dr Pepper tastes more like its regular counterpart than other diet soft drinks do. Further, the court rejected Becerras argument that the use of attractive, fit models in Diet Dr Peppers advertisements implied that Diet Dr Pepper would help people who drank it achieve those bodies. Relying on Second Circuit precedent, the Ninth Circuit held that [t]he use of physically fit and attractive models using and enjoying advertised products is so ubiquitous that it cannot be reasonably understood to convey any specific meaning at all.
The Ninth Circuit also rejected Becerras assertion that two ABA articles showed that consumers understood the word diet to promise weight loss. As the court noted, the articles emphasized that other lifestyle changes beyond merely drinking diet soft drinks are necessary to see weight-loss results.
Finally, the Ninth Circuit did not consider the survey results summarized in Becerras third amended complaint sufficient to salvage her case. While the court recognized its obligation to accept the complaints allegations surrounding the survey as true, the court still found that reasonable consumers would understand that diet in the soft drink context was a relative claim about the calorie or sugar content of the product. Moreover, the court faulted the surveys failure to address this understanding or the equally reasonable understanding that drinking diet sodas will result in weight loss only if the person consumes fewer calories overall.
This case is Shana Becerra v. Dr Pepper/Seven Up, Inc., No. 18-16721 (9th Cir. 2019).
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Nothing Deceptive With Diet Drinks, Says the Ninth Circuit - Lexology
