PepsiCo attorney files document noting courts don’t think ‘diet’ drinks mislead

PepsiCo filed its seventh statement of recent decision Friday in support of dismissing a false advertising action alleging the word "Diet," in "Diet Pepsi," misled consumers to believe the beverage will assist in weight loss.

Filed by defense attorney Andrew S. Tulumello of Gibson, Dunn & Crutcher LLP, the document contains a single paragraph pointing to an appellate opinion upholding a district's court's dismissal of a similar action brought in the Southern District of New York.

In the published opinion Geffner v. Coca-Cola Company, the 2nd U.S. Circuit Court of Appeals ruled, "Consistent with the rulings of every court that has addressed this issue, we hold that when included in a soft drink title, the adjective 'diet' refers specifically to caloric content rather than a generic promise of weight loss."

The underlying complaint filed by San Diego attorney Jack Fitzgerald on behalf of Santa Rosa resident Shana Becerra in the Northern District argues, "Because of the product's use of the term 'diet,' and its lack of calories, consumers reasonably believe that drinking Diet Pepsi will assist in weight loss or management."

Becerra, represented by of the Law Offices of Jack Fitzgerald PC, brought a similar action against Coca-Cola in California in 2017. After U.S. District Judge William Alsup dismissed the case a year later, Becerra appealed.

In his order, Alsup wrote, "A reasonable consumer would simply not look at the brand name Diet Coke and assume that consuming it, absent any lifestyle change, would lead to weight loss."

Fitzgerald's complaint said that over 13 years Becerra purchased "at least dozens of cans of Diet Pepsi a month," believing -- based on PepsiCo's advertising -- it would contribute to weight management and not cause her to gain weight.

In addition to seeking restitution and damages, Fitzgerald asked the court to enjoin Pepsi from marketing Diet Pepsi as "diet" as long as it uses certain sweeteners and to order it to engage in a corrective advertising campaign. Becerra v. PepsiCo. Inc., 17-cv-05918 (N.D. Cal. filed Oct. 16, 2017).

-- Blaise Scemama