There’s real consumer fraud, and there’s imaginary consumer fraud. Becerra v. Dr Pepper/Seven Up, http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/30/18-16721_.pdf (9th Cir. 12/30/19), is a striking example of the latter.
The plaintiff claimed that “Dr Pepper violated various California consumer-fraud laws by branding Diet Dr using the word ‘diet.’” Specifically, the complaint “alleged that the label ‘diet’ misled Diet Dr Pepper consumers by promising that the product would ‘assist in weight loss’….” After giving the plaintiff two chances to amend, the district court dismissed the third amended complaint with prejudice, and the Ninth Circuit affirmed.
It seems self-evident that simply drinking diet soda, without exercising and eating a healthy reduced-calorie diet, will not result in the loss of a single pound. Indeed, the panel could have affirmed the dismissal of the complaint in a single paragraph:
When considering the term in its proper context, no reasonable consumer would assume that Diet Dr Pepper’s use of the term “diet” promises weight loss or management. In context, the use of “diet” in a soft drink’s brand name is understood as a relative claim about the calorie content of that soft drink compared to the same brand’s “regular” (full caloric) option. The “diet” label refers specifically to the drink’s low calorie content; it does not convey a more general weight loss promise. (Citation and internal quotation marks omitted.)
Nevertheless, the panel patiently devoted five pages to refuting the plaintiff’s various arguments based on dictionary definitions, advertisements, online articles from the American Beverage Association, and the results of a consumer survey. Perhaps the court couldn’t resist the opportunity to offer dry, straight-faced rebuttals to amusing arguments like this one: “Becerra also alleges that the use of attractive, fit models in the ads implies that Diet Dr Pepper will help its consumers achieve those bodies. But…the use of physically fit and attractive models using and enjoying advertised products is so ubiquitous that it cannot be reasonably understood to convey any specific meaning at all.” (Citation and internal quotation marks omitted.)
Ultimately, however, this case isn’t amusing – it’s depressing. Consider the following footnote:
Becerra’s suit against Dr Pepper in California was part of a series of suits brought against soda manufacturers. Becerra also filed suit in California against Coca-Cola. We dismiss that suit on jurisdictional grounds in a memorandum decision filed concurrently with this opinion. The Second Circuit recently affirmed dismissal of complaints similar to Becerra’s that were filed under New York’s consumer-fraud laws. Geffner v. Coca-Cola Co., 928 F.3d 198 (2d Cir. 2019) (per curiam); Excevarria v. Dr. Pepper Snapple Grp., Inc., 764 F. App’x 108 (2d Cir. 2019); Manuel v. Pepsi-Cola Co., 763 F. App’x 108 (2d Cir. 2019).
Imagine – a whole suite of lawsuits claiming that the soda industry is defrauding consumers because the word “diet” falsely leads reasonable people to believe that drinking diet soda will help them lose weight. Speaking as a former plaintiff’s attorney who had the privilege of arguing serious cases before the First Circuit when Justice Breyer sat on that bench, it seems to me that that the lawyers who pursued these cases could have found better things to do with their time.
