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California Federal Court: Calling a Soda “Diet” is Not False or Deceptive Advertising
In August 2018, a California federal court sitting in San Francisco rejected consumer claims that labeling a soda as “diet” was false and/or misleading. The case was Becerra v. Dr Pepper/Seven Up, Inc., No. 17-CV-05921 (US. Dist. ND Cal. August 21, 2018). In that case, the consumer had been buying and consuming diet Dr. Pepper for 13 years. The plaintiff alleged that the labeling of the product as “diet” was both false and deceptive advertising. The claim of “false advertising” was based on the claim that the term “diet” leads consumers to believe that the drink will cause weight loss. The “deceptive advertising” claim was based on the allegation that the artificial sweeteners and other chemicals used in the soda actually caused weight gain. The Court rejected both claims. Here is a quick rundown of the case.
We discuss these kinds of cases here on our website because every San Diego business must be aware of issues with respect to advertising and deceptive business practices. California law prohibits businesses from engaging in unfair and deceptive business practices including false and deceptive advertising. This might bring to mind putting an advertisement online or on the radio or on television, but “advertising” encompasses labeling, social media, flyers, store signs, and pretty much every statement made about your business and your products and/or services. Being sued for false or deceptive advertising is expensive, so it is important to avoid the pitfalls. Cases like Becerra provide helpful guidance to California businesses with respect to the outer limits of what will be considered false and/or deceptive. If you have questions about your advertising, including social media pronouncements on Twitter, Facebook and other platforms, a good San Diego corporate lawyer can help.
San Diego Corporate Law: Facts of Becerra
As noted, the Becerra plaintiff alleged that the “diet” on “Diet Dr. Pepper” was both false and deceptive. In evaluating the claim, courts are required to apply what is called California’s “reasonable consumer” test. Essentially this means that what is “false” or “deceptive” is based on the “average consumer,” not the specific consumer who filed the lawsuit. This standard is good for California businesses because it avoids the outlier consumer saying, “I was deceived.” With respect to “diet” sodas, the court rejected plaintiff Becerra’s arguments and evidence that the average consumer is deceived or confused by the term “diet.” Becerra offered various studies, dictionary definitions and advertisements purporting to show confusion, but the court held that these were not sufficient. The court held that there was no plausible evidence that a reasonable consumer believed anything other than the “diet” label meant the soda had fewer calories than a non-diet soda. For example, in evaluating the advertising evidence, the court highlighted the fact that any claims in the ad copy of weight-loss were based on a comparison to non-diet sodas. The false advertising claim was dismissed.
As to the deceptive advertising claim, to succeed on that claim, Becerra was required to prove that the diet claim was actively false in that it was fraudulent. Becerra alleged that the “diet” claim was, in fact fraudulent because the chemicals and artificial sweeteners caused weight gain. However, Becerra had no viable evidence to support that allegation. As such, there could be no claim for deceptive advertising and that part of the case was also dismissed.
Contact San Diego Corporate Law Today
If you want more information on legal issues with respect to advertising and false advertising, contact attorney Michael Leonard of San Diego Corporate Law. Mr. Leonard provides a full panoply of legal services for San Diego and California businesses. Mr. Leonard can be reached at (858) 483-9200 or via email.
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