May 21, 2019

May 21, 2019

Subscribe to Latest Legal News and Analysis

May 20, 2019

Subscribe to Latest Legal News and Analysis

Dishing Out the Latest F&B Litigation Updates: Part 2

Food and Beverage Deception Cases Still Must Pass the “Are you Serious?” Test

Becerra v. The Coca-Cola Co., No. 17-cv-05916, 2018 WL 1070823 (N.D. Cal. Feb. 27, 2018)

The Skinny

It is not Coca-Cola’s fault if you think Diet Coke should make you lose weight. In the highly litigious area of false advertising claims, this case reminds us that, first and foremost, zealous plaintiffs must remain reasonable in their assertions. The level of proof needed to demonstrate that a reasonable consumer may be misled by a product’s advertising demands more than just merely stating so. See Manuel v. Pepsi-Cola Co. and Excevarria v. Dr. Pepper Snapple Grp. for very similar rulings.

The Meat and Potatoes:

The Honorable William Alsup of the Northern District of California dismissed a putative class action against Coca-Cola. This class action claimed the name “Diet Coke” misleads consumers into believing that merely drinking the product will result in weight loss. However much we may wish that were true, Judge Alsup determined that the reasonable consumer knows that drinking diet soda (without more) does not lead to weight loss. He reasoned that using healthy looking actors in advertisements does not imply that drinking Diet Coke causes drinkers to lose weight, “without regard to exercise and nutrition.”

The Case is currently on appeal to the Ninth Circuit, where the plaintiffs are relying on studies showing that nonnutritive sweeteners, like the aspartame found in Diet Coke, interfere with the body’s ability to process foods and causes weight gain.

Read Part 1 Part 3 and Part 4.

© 2019 Bilzin Sumberg Baena Price & Axelrod LLP

TRENDING LEGAL ANALYSIS


About this Author

Jennifer Junger Commercial LItigator Bilzin Sumberg Law Firm
Associate

Jennifer focuses her practice on commercial litigation. At George Washington University Law School, Jennifer was selected to participate in the Family Justice Litigation Clinic, where she was certified by the D.C. Court of Appeals to appear in court on Family Law matters. During law school, Jennifer served as a clerk for the Senate's Permanent Subcommittee on Investigations, as well as for the Child Exploitation and Obscenity Section of the Department of Justice. Jennifer also worked as a law clerk for the U.S. Attorney's Office for the Southern District of Florida.

What was your...

305-350-7226
Lori Lustrin, Mortgage Attorney, Bilzin Sumberg Law Firm
Associate

Lori Lustrin is an associate in Bilzin Sumberg's Litigation Group. Lori’s practice focuses on antitrust and federal multidistrict class actions. She also has substantial experience in a broad range of complex business litigation matters, including intellectual property disputes, landlord-tenant disputes, land use litigation, bankruptcy litigation, employment disputes, professional malpractice actions, unfair and deceptive trade practices issues, fraud claims, defamation suits, products liability matters, and international arbitrations. Lori’s varied practice has allowed her to represent clients through trial and appeal, both in Florida and in federal courts across the country.

305-350-2385
Melissa Pallet-Vasquez, Litigation Attorney, Bilzen Sumberg Law Firm
Partner

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in...

305-350-2393