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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.

© 2020 Bilzin Sumberg Baena Price & Axelrod LLPNational Law Review, Volume IX, Number 109


About this Author

Lori Lustrin, Commercial Litigation Attorney, Bilzin Sumberg Law Firm

Lori is a general commercial litigator who focuses on complex class-action and plaintiff opt-out antitrust litigation in federal court. In addition to antitrust work, her class action experience includes defending clients in the consumer products, homebuilding, real estate investment, and food and beverage industries.

Lori has also taken an interest in the emerging area of healthcare antitrust litigation and she has authored several articles on the subject. In addition to her varied federal court work, Lori has substantial experience in complex business litigation...

Melissa Pallet-Vasquez, Litigation Attorney, Bilzin Sumberg Law Firm

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...