A federal circuit court put plaintiffs’ lawyers on a monetary diet Monday when it affirmed a lower court’s decision to toss a lawsuit that claimed Dr Pepper/Seven Up falsely led consumers in California to believe that Diet Dr Pepper could help them lose weight.
The ruling, issued by the U.S. Court of Appeals for the Ninth Circuit, marks a win for Plano-based Dr Pepper Snapple Group and a team of Texas-based Baker Botts lawyers who represented the company in the litigation. It also comes on the heels of another case struck down this year by the Second Circuit that involved similar claims about Diet Coke.
“This ruling has far-reaching implications for the food and beverage industry, particularly for the myriad of products that use the word ‘diet’ on their label or as part of their brand name and are sweetened with an artificial sweetener,” said Austin Baker Botts partner Evan Young, who handled oral arguments for Dr Pepper before the Ninth Circuit. “Indeed, today’s ruling will be important in consumer-products cases generally, because the Ninth Circuit issued a published, precedential opinion that vindicates a common-sense approach to what reasonable consumers understand a label to mean.”
San Diego attorney Jack Fitzgerald, who led oral arguments for plaintiff Shana Becerra, did not immediately respond to a request for comment.
A California resident, Becerra sued Dr Pepper/Seven Up in October 2017 on claims that the company violated various provisions of California state law. According to her lawsuit, which she filed as a proposed class action, Becerra spent more than 13 years purchasing Diet Dr. Pepper at her local Safeway because Dr Pepper’s advertising led her to believe that “it would contribute to healthy weight management and, due to its lack of calories, would not cause her to gain weight.”
Becerra, who has struggled with obesity since childhood, suggested in her lawsuit that a court should enjoin Dr. Pepper from making misleading claims about its products in order to prevent the company from reaping the benefits of fraudulently inflated prices and market demands.
“Diet Dr Pepper was worth less than what the plaintiff paid for it,” the lawsuit says. “Instead of receiving a beverage that would help assist plaintiff in achieving and maintaining a healthy weight, plaintiff received a beverage whose consumption is likely to lead to weight gain.”
U.S. District Judge William Orrick of the Northern District of California dismissed Becerra’s lawsuit, but allowed her to revise it.
In the revised version, Becerra asserted “the same general allegations” but added dictionary definitions to back her claim that reasonable consumers understand the word “diet” to promise weight loss assistance, the Ninth Circuit’s opinion says.
She also attached two American Beverage Association articles to further support that argument. Judge Orrick dismissed Becerra’s lawsuit again, and she appealed to the Ninth Circuit.
In Monday’s opinion, the Ninth Circuit affirmed Judge Orrick’s dismissal while also giving the plaintiff a vocabulary lesson.
The opinion points out that Becerra only cited definitions of “diet” that use the word as a verb or noun, when — as Dr Pepper/Seven Up and the lower court had pointed out — the word can also be used as an adjective or proper noun, which “puts the word in a different light.”
“Becerra’s selective quotations omit the definitions of ‘diet’ as an adjective and the frequent usage of ‘diet soft drinks’ as the primary example of the word’s usage in that context,” the opinion says. “For example, the Merriam Webster Dictionary defines the adjective ‘diet’ as ‘reduced in or free from calories — a diet soft drink.’”
“Just because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive,” the opinion adds.
The Baker Botts team that defended Dr Pepper Snapple also included Dallas partner Van Beckwith, who starts a new job Jan. 1 as Halliburton’s new general counsel. In addition to Beckwith, the team included Dallas associate Monica Hughes Smith, San Francisco partner Jonathan Patchen and San Francisco associate Ariel House.