SAN FRANCISCO (Legal Newsline) – The plaintiff in a lawsuit against Coca-Cola Co. who alleges the company misleadingly markets Diet Coke as a weight-loss beverage is appealing a court's decision to toss the suit.
Shana Becerra filed her appeal brief in the U.S. Court of Appeals for the Ninth Circuit on Sept. 28, seeking to vacate the U.S. District Court for the Northern District of California's ruling in February that granted the soft drink manufacturer's motion to dismiss.
In the case, Coca-Cola argued that Becerra's claims of deception on the marketing of Diet Coke were preempted by the Nutrition Labeling and Education Act of 1990, mentioning that "no state may directly or indirectly establish any requirement for the labeling of food that is 'not identical to' certain federal requirements."
The same law gives an exception to the term "diet," which was used in conformity with the legal statute, the ruling stated.
"By marketing Diet Coke as 'diet,' Coca-Cola suggests to reasonable consumers that the beverage assists in weight loss or healthy weight management," Becerra's appeal states. "The science demonstrates, however, that the artificial sweeteners in Diet Coke interfere with the body’s metabolism, can cause weight gain and increased risk of chronic disease, and are not useful in promoting weight loss or healthy weight management."
She reinforces her argument citing the use of the sweetener aspartame, which she alleges could cause increases in weight.
"Because the aspartame in Diet Coke and other diet sodas can cause weight gain and disease, millions of consumers have been duped," Becerra's appeal states.
Becerra also questions the application of the California's Safe Harbor law, which also preempts her claims, according to the original ruling.
"The safe harbor doctrine bars plaintiff’s consumer protection claims," Becerra mentioned in the brief.
Becerra is represented by attorneys Jack Fitzgerald, Trevor Flynn, and Melanie Persinger of The Law Offices of Jack Fitzgerald PC of San Diego; John Weston of Sacks Weston Diamond of Philadelphia; and Abraham Melamed of Derek Smith Law Group PLLC of New York City.
U.S. Court of Appeals for the 9th Circuit Case number 18-15365