The United States Court of Appeals for the Ninth Circuit may have answered a question for all those who cannot understand why they are not losing weight when drinking diet sodas. The answer is that it is really not a diet drink. That is the ruling of the panel against the claim of Shana Becerra who proffered that the moniker is deceptive advertising in a lawsuit against Diet Dr. Pepper. By the way, remember the slogan “Trust Me I’m A Doctor?” It turns out that he is not even a real doctor. Lies upon lies.
Becerra claimed that she drank Dr. Pepper for 13 years before concluding it was all a lie and she was not getting skinnier. She argued “Dictionary definitions of the term ‘diet’ commonly refer to weight loss, or to other health benefits resulting from a special or limited selection of food or drink.”
The district court rejected the claims and 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. Moreover it rejected as “insufficient” the claim (based on some studies) that aspartame consumption actually causes weight gain.
The panel agreed and decided she was a tad slow — by about 13 years — on the uptake on that one. It cited its own dictionary definition in concluding that most people would not assume that the soda was a weight loss product as opposed to being a low calorie drink.
When considering the term in its proper context, no reasonable consumer would assume that Diet Dr Pepper’s use of the term “diet” promises weight loss or management. In context, the use of “diet” in a soft drink’s brand name is understood as a relative claim about the calorie content of that soft drink compared to the same brand’s “regular” (full caloric) option. Ses Geffner, 928 F.3d at 200 (“the ‘diet’ label refers specifically to the drink’s low calorie content; it does not convey a more general weight loss promise” (footnote omitted)). And considering “diet” as a proper noun—as in Diet Dr Pepper—does not further Becerra’s argument. 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.
There is growing evidence that diet sodas may actually contribute to weight gain. This may not be the last such challenge if such studies are reinforced. For example, the European Union and other jurisdictions may take a harsher view of the use of diet in the title if the drinks actually trigger weight gain.
There is however a curious tie of Dr. Pepper to violent crime this week.
It is also not “liquid sunshine” as first claimed.
Here is the opinion: Becerra v. Dr. Pepper