This is personal: Diet Coke obesity suit dismissed even after repleading

Geffner v. Coca-Cola Co., 2018 WL 6039325, No. 17 Civ. 7952
(LLS) (S.D.N.Y. Oct. 31, 2018)
Plaintiffs alleged that, by marketing Diet Coke as “diet,” Coca-Cola
misleads consumers into believing that drinking Diet Coke will assist in weight
loss or healthy weight management. Scientific studies allegedly showed that the
opposite is true:” nonnutritive sweeteners like aspartame interfere with the
body’s ability to properly metabolize calories, leading to increased risk of
weight gain and health problems.” They alleged a consumer survey showing that a
majority of consumers expect diet soft drinks to help them lose weight or
maintain/not affect their weight.  They
brought claims under NYGBL §§ 349 & 350 and related common-law claims.  
The plaintiffs alleged that Coca-Cola’s ad campaigns
reinforced the weight-loss/control message of the name.  “One longstanding 1980s advertising campaign
claimed that Diet Coke ‘will not go to your waist’ and is ‘suitable for
carbohydrate and calorie-reduced diets.’” Other ads depict slim people drinking
Diet Coke, and one showed a slim Diet Coke bottle with its label hanging loose.
The American Beverage Association, of which Coca-Cola is a member, allegedly
funded a study of soft drinks which purported to show that “diet beverages can
help with weight loss,” and published an article claiming that
“low-calorie-sweeteners can help reduce calories and sugar intake and aid in
maintaining a healthy weight – or even dropping some weight.”
Plaintiffs’ nationwide and California survey showed that
over 60% of consumers believed that drinks labeled “diet” would help
maintain/not affect weight, while up to 15% thought that it would help the
drinker lose weight.  A bit over 20% had
no expectations and only a few percent said that it would contribute to weight
gain.

The cited studies concerned non-nutritive sweeteners (“NNS”)
like aspartame; their findings include: “The addition of NNS to diets poses no
benefit for weight loss or reduced weight gain without energy restriction”; “Data
from large, epidemiologic studies support the existence of an association between
artificially-sweetened beverage consumption and weight gain in children”; “While
people often choose ‘diet’ or ‘light’ products to lose weight, research studies
suggest that artificial sweeteners may contribute to weight gain”; aspartame
consumption alters the intestinal microbes in a way that causes glucose
intolerance; aspartame consumption by rats “resulted in hyperglycemia and an
impaired ability to respond to insulin”; “There now exists a body of evidence,
from a number of investigators, that animals chronically exposed to any of a
range of LCSs [low-calorie sweeteners] … have exhibited one or more of the
following conditions: increased food consumption, … increased weight gain,
greater percent body fat, … and significantly greater fasting glucose, … compared
with animals exposed to plain water or – in many cases – even to
calorically-sweetened foods or liquids” “frequent use of diet beverages has
been associated prospectively with increased long term risk and/or hazard of a
number of cardiometabolic conditions usually considered to be among the
sequelae of obesity: hypertension, metabolic syndrome, diabetes, depression,
kidney dysfunction, heart attack, stroke, and even cardiovascular and total
mortality”;  “Using different models and
approaches to account for initial ‘indication’ and changing usage patterns, we
consistently found low-calorie sweetener use associated with weight gain and
expanding waistline.”  But … my addiction!
The Nutrition Labeling and Education Act of 1990 (NLEA)
governs when a label containing nutrition content and health claims will be
deemed misbranded. It provides an exception for the term “diet” used in soft
drink brand names if the word was contained in the brand name of the soft
drink, the name was in use before October 25, 1989, and the use was in
conformity with the old CFR. However, such uses are still subject to the
requirement that a “food shall be deemed to be misbranded” if “its labeling is
false or misleading in any particular.” The FDCA preempts requirements that
aren’t the same as those of the NLEA.
The FDCA didn’t authorize use of “diet” in Diet Coke; the
exemption meant that it wasn’t required to follow certain labeling rules, but
didn’t “affirmatively approve or require” the name. Nor would state law claims
impose additional requirements, since federal law prohibits statements that are
false or misleading in any way. (This also meant that the NYGBL safe harbor
defense for conduct that is “subject to and complies with the rules and
regulations” of any federal agency didn’t apply).
Nonetheless, plaintiffs still failed to state a claim. As
shown in the plaintiffs’ survey, the majority of consumers expect diet soft
drinks to not affect their weight, so the name wasn’t plausibly misleading. “Diet”
generally means “fewer calories than the alternative.” Thus, regular consumers would
understand this to be a calorie statement, and that “caloric reduction will
lead to weight loss only as part of an overall sensible diet and exercise
regimen dependent on individual metabolism.” [This seems to me to miss the
point of the allegations, which is that consumers are mistaken to think that the only relevant thing that Diet Coke does
is have fewer calories—the allegations are that it affects the body in ways
that encourage weight gain.  The
substantial majorities of consumers who expect it to be weight-neutral are thus
deceived.]
I do agree that most of the ads didn’t add much: “Reasonable
consumers understand that advertising will feature healthy and attractive
consumers enjoying the subject products and will not star the unhealthy and
unfit. Such advertising cannot be said to imply that a product will cause
weight loss without regard to exercise and nutrition.” 
The court found that the cited studies didn’t plausibly
allege that “consumption of aspartame increases the risk that a consumer will
gain weight or develop hyperglycemia.” None of the cited studies showed a
causal link between the aspartame in Diet Coke and risk of weight gain or
health problems; “indeed, many caution against a finding of causality.” One cited
study concluded, “In summary, the available evidence does not directly support
a role of [artificial sweeteners] in inducing weight gain or metabolic
abnormalities …” Another study found that “observational data in humans
cannot show causality.” Another found that, although use of low-calorie
sweeteners was “associated” with weight gain, it “cannot rule out the
possibility of unmeasured confounders.”  The studies supported a correlation between
aspartame consumption and risk of weight gain or health problems, but that didn’t
plausibly rule out other factors or plausibly support “risk” or causation.  [Query for civ pro types: under what non-probabalistic
circumstances must allegations “rule out” other factors?  The idea of ruling out seems inconsistent
with plausiblity even under Twiqbal.  I do understand the idea that, even if a lack
of correlation would make a causal claim less plausible, the presence of
correlation doesn’t establish causation.]

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