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Plaintiffs Cling to Slim Chance of Success in 9th Circuit After 2nd Circuit Affirms the Term “Diet” is Not False and Misleading in Name of Soft Drink Sweetened with Aspartame

 2nd Circ. Cans Diet Coke Drinkers’ False Ad Suit 

  • The U.S. Court of Appeals for the 2nd Circuit dismissed the plaintiffs’ lawsuit in Geffner v. The Coca Cola Company, Case No. 18-16721, Decided: June 27, 2019 over claims that the “diet” labeling in Diet Coke is false and misleading.  The panel affirmed its decisions earlier this year in similar lawsuits involving Diet Pepsi and Diet Dr Pepper that, in the context of soft drinks, the term “diet” refers to calorie content, and it has no absolute meaning, such that in order to meet federal advertising standards, a diet soft drink need only have fewer calories than its non-diet version.

  • Plaintiffs in diet soda lawsuits do not dispute that soft drinks sweetened with aspartame have fewer calories than their non-diet counterparts but contend that the word “diet” on such labels is nevertheless misleading because consumers reasonably believe the drinks will help with weight loss and drinks containing aspartame instead contribute to weight gain.  The law firm representing the plaintiffs in Geffner has indicated they will pursue this argument in similar claims involving Diet Dr Pepper on behalf of other plaintiffs in the 9th Circuit.

  • As we have previously reported, the Federal District Court for the Northern District of California has repeatedly dismissed false advertising claims against Diet Dr Pepper, stating in its dismissal of the plaintiffs’ third amended complaint that new studies “still fail to offer a single finding of causation between aspartame or diet soda products and weight gain…correlation is not causation, neither for purposes of science nor the law.”  We are not aware of new scientific data that would make a fourth amended complaint any more likely to succeed.

© 2020 Keller and Heckman LLP


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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...