SAN FRANCISCO (Legal Newsline) – A California woman is appealing a judge's decision to toss her suit against Dr. Pepper/Seven Up Inc. over the use of the word "diet" on Diet Dr. Pepper.
U.S. District Judge William Orrick, in the bench of the U.S. District Court for the Northern District of California, issued a 16-page ruling on Aug. 21 dismissing the lawsuit filed by Shana Becerra against Dr. Pepper/Seven Up Inc.
Becerra filed the appeal Sept. 11 in the U.S. Court of Appeals for the Ninth Circuit.
Fitzgerald
Becerra, just like she did in a class action against Coca Cola, sued Dr. Pepper/Seven Up over allegations it deceived customers and violated consumer protection laws due to the use of the term "diet" in the company's Diet Dr. Pepper products. She alleged the use of the word "diet" is usually associated with weight loss and weight management.
She filed the suit in October 2017, when she argued that "what makes the product 'diet' is the presence of a non-caloric artificial sweetener, aspartame, instead of sugar," and that, as a result, "the use of the term 'diet' is deceptive, therefore, because diet conveys the product will not lead to weight gain when the aspartame in diet soft drinks does."
After the original suit, Becerra filed three amended complaints, with the last one filed on April 30.
"Becerra has not pleaded a plausible claim that reasonable consumers would be deceived by the use of 'diet' in the Diet Dr. Pepper label," Orrick ruled.
The judge also mentioned that "that the studies Becerra cites," supposedly linking aspartame to weight gain, "do not cross the threshold from allegations of correlation to causation," considering the claims "implausible."
"Given that this was Becerra’s fourth attempt to state a claim, her counsel agreed at the hearing on defendant’s motion that further efforts to amend would be futile," Orrick said.
Becerra's legal team comes from the Law Office of Jack Fitzgerald in San Diego and Sacks Weston Diamond in Philadelphia.
U.S. District Court for the District of Northern California case number 3:17-cv-05921-WHO