Weight Loss Resolutions Abound – Is Diet Dr. Pepper on Your Weight Loss Plan?
Is “Diet Soda” Deceiving You Into Believing You Will Lose Weight?
With numerous products on the market claiming health benefits, weight loss, etc., most consumers have come to know that the use of words like “the best” or “tastiest” are mere puffery and not guarantees of a product, since those are personal subjective opinions. However, is “diet soda” deceiving to consumers? In a consumer case against Dr. Pepper, the Court of Appeals for the Ninth Circuit found not.
When Do Words Used in Product Description Become Misleading?
With the FDA and state consumer protection laws guiding how food brands market their products in both ingredient and nutrition labeling, the more obvious advertising in commercials and in brand trademarks and design can sometimes be lacking in guidance of exactly what is and is not going to be considered deceptive or misleading to a consumer. That is when lawsuits often spring up and ultimately help provide a standard by which to go by.
In 2017, Shana Becerra filed a lawsuit against Dr. Pepper/Seven Up, Inc. claiming consumer fraud in branding through the use of “diet” in Diet Dr. Pepper. Among the claims, Becerra alleged that the word diet is deceiving to consumers and misleading consumers into the belief that a product labeled as “diet” would have health benefits such as weight loss. In the lawsuit, Becerra includes that as part of the misleading, the Dr. Pepper commercials feature thin, attractive models to further deceive.
When Is Diet Soda Deceiving? The Reasonable Person Test
In the Becerra v. Dr. Pepper case, the court ruled unanimously finding that the use of the word diet to describe a soda product is not deceiving to a reasonable consumer. The court indicates that it has been well established that the meaning of diet for sodas is a reference to a product with fewer calories than its non-diet or “regular” counterpart. The court explains that even if some consumers may unreasonably interpret of the term differently, that does not render the use of the term as false advertising or misleading to consumers when used as a soda’s brand name.
In this case, the term diet has been used for many years to distinguish two options of a brand’s similar product, one being a full calorie/sugar version, the other a lesser calorie/sugar alternative version. Over the years, it’s possible some people may have misunderstood, but ultimately, as the court’s decision indicates, most people have come to know that a diet soda is not necessarily better than a non-diet soda. Certainly, though, a consumer that is counting calories for the day may opt for a diet soda rather than a regular one.
Note, this ruling was determined on what has come to be known from such term as used in connection with soda brands, which appears to be considered well established now. Had this case or a similar one come along at the start of the use of “diet soda” there is a possibility the outcome would have been different.
Similar Diet Soda Deception Cases
In 2019, similar cases against Coca-Cola, PepsiCo., Inc., and Dr. Pepper under New York jurisdiction, the federal appeals court upheld dismissals. Followers of these cases anticipate that a case pending against Coca-Cola on similar grounds for use of Diet Coke will follow suit. It appears the courts are agreeing with the findings and the use of “diet” at least in relation to sodas it not considered misleading or deceptive to consumers for weight loss.
Key Takeaways for Use of “Diet” in Food Advertising
Although courts have been ruling that the use of diet soda in branding and advertising of soda alternatives to regular soda is not considered deceptive advertising or misleading to reasonable consumers, it does not mean all use of “diet” is going to always be legal. Food brands introducing new diet products should:
take care to market the products in a manner that makes it clear whether any reference to “diet” means weight loss or not;
take steps to help educate consumers on alternative if the brand offers them so consumers understand what they are getting with each option; and
seek guidance from an attorney with experience in advising consumer product brands to help ensure proper disclosures in labeling and in advertising in various media.
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