SAN FRANCISCO (Legal Newsline) – In a ruling made on March 30, the U.S. District Court Northern District of California dismissed the case of a woman who alleged Diet Dr Pepper's advertising made her believe the soft drink would help consumers lose weight.

“I agree with its contention that it is not plausible that a reasonable consumer would believe that drinking Diet Dr Pepper would assist in weight loss, beyond the fact that it has no calories,” Judge William H. Orrick wrote.

According to the March 30 court opinion, Shana Becerra believed that Diet Dr Pepper would help in weight loss or healthy weight management due to the use of the term “diet,” but she then learned that artificial sweeteners used in Diet Dr Pepper may cause weight gain.

Becerra filed the lawsuit on behalf of herself and a class of California consumers seeking damages and relief as well as an injunction to stop Dr Pepper/Seven Up Inc. from marketing its Diet Dr Pepper as “diet.”

Dr Pepper moved to transfer the case to the U.S. District Court for the Eastern District of Texas, but the California court said the case belongs in California because “it has a California plaintiff who was injured in California and chose this venue.”

The court, however, granted Dr Pepper’s request to dismiss the plaintiff's second amended complaint entirely. 

According to the opinion, Dr Pepper “uses the term ‘diet’ to market Diet Dr Pepper because the product is sweetened with a non-caloric artificial sweetener, aspartame, rather than sugar.”

Becerra alleged aspartame does not contain calories, "but scientific research demonstrates ... that it is likely to cause weight gain."

Becerra filed suit on behalf of herself and a California class, alleging false and misleading advertising in violation of California’s False Advertising Law, Consumers Legal Remedies Act and Unfair Competition Law, as well as breach of both express and implied warranties.  

Dr Pepper said the claims should be dismissed because the claims are expressly preempted by Congress and the Food and Drug Administration approves the use of “diet” as part of a soft drink brand name, like “Diet Dr Pepper,” in the Nutrition Labeling and Education Act of 1990.

“The NLEA does not affirmatively approve of the use of 'diet' in soft drink brand names like 'Diet Dr Pepper,' but instead exempts it from certain labeling requirements to which other nutrition level and health-related claims are subjected,” Orrick wrote. 

The opinion added that federal law prohibits state food labeling requirements that are not identical to federal requirements, but the Food, Drug and Cosmetic Act and California law contain identical prohibitions on false or misleading labeling.

“Given that California law is entirely consistent with and indeed identical to the NLEA, there is no preemption of plaintiff’s claims,” the opinion stated.

Dr Pepper also moved to dismiss plaintiff’s FAL, CLRA and UCL claims on the grounds that they are barred by California’s safe harbor doctrine, but the court said California’s safe harbor doctrine does not bar plaintiff’s claims.

“California’s safe harbor doctrine does not apply because no statute or regulation ‘affirmatively permits’ the use of the term ‘diet’ in soft drink labels,” the opinion stated. “Instead, the NLEA makes it ‘merely not unlawful’ to use the term ‘diet’ if certain conditions are met; compliance with a federal statute or regulation does not establish express authorization.”

Dr Pepper also said the claim of deception is invalid because “no reasonable consumer would be misled by the term ‘diet’ in the context of a diet soft drink, nor do the studies and articles referenced in the complaint establish that Diet Dr Pepper actually causes weight gain.”

The court agreed.

“A reasonable consumer knows that this is and always has been true of soft drinks generally – ‘diet’ soft drinks are simply lower calorie or calorie-free versions of their sugar-laden counterparts,” Orrick wrote. “A reasonable consumer would have no basis to infer anything more from Diet Dr Pepper’s label or advertising than that it is a calorie-free soft drink.”

In regards to the claims for breach of express and implied warranty, the court said “the term “diet” as it appears on Diet Dr Pepper’s label does not create an express warranty to consumers that the product will assist with weight loss.”

The judge denied the motion to transfer, granted the motion to dismiss and allowed Becerra to file an amended complaint within 20 days.

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