“diet” isn’t misleading for soda even if surveys say it is

Becerra v. Dr Pepper/Seven Up, Inc., 2019 WL 7287554, No.
18-16721 (9th Cir. Dec. 30, 2019)
Becerra alleged that Dr Pepper violated the usual California
consumer-fraud laws by branding Diet Dr Pepper using the word “diet.” She cited
dictionary definitions to support her allegation that reasonable consumers
understand the word “diet” to promise assistance in weight loss. She included references
to print and television advertisements and online articles from the American
Beverage Association as further support of the allegation that consumers
understand “diet” soft drinks to offer certain health benefits. And she
summarized the results of a survey of California and national consumers that
allegedly supported her claim.
“The district court found that no reasonable consumer would
believe that the word ‘diet’ in a soft drink’s brand name promises weight loss
or healthy weight management and, even if a reasonable consumer would believe
that, Becerra had not sufficiently alleged that any such promise was false
because of insufficient allegations that aspartame consumption causes weight
gain.” The court of appeals affirmed on the first ground and didn’t reach the
Dictionary definitions: focused on the meaning of “diet” as
verb or noun, not as adjective/proper noun, and Dr Pepper’s use of the word as the
latter “puts the word in a different light.” Adjective definitions work
differently, e.g., Merriam Webster defines the adjective as “reduced in or free
from calories[—]a diet soft drink.” In context, “no reasonable consumer would
assume that Diet Dr Pepper’s use of the term ‘diet’ promises weight loss or
management” but instead the term “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 problem is really one of implication—like “low tar”
for cigarettes.  The point of
having fewer calories is to help with weight control; no one cares about
calories in the abstract.  Interesting
that courts in tobacco cases fully recognize this but courts in diet cases don’t.]
So too with the proper noun version: “In common usage, consumers know that Diet
Dr Pepper is a different product from Dr Pepper—different not only in name, but
in packaging and, importantly, taste.”
Becerra argued that she alleged a plausible misunderstanding
of the word, but any such misunderstanding was unreasonable. “Diet soft drinks
are common in the marketplace and the prevalent understanding of the term in
that context is that the ‘diet’ version of a soft drink has fewer calories than
its ‘regular’ counterpart. 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.”
Nor did the ads, articles, or survey help. The ads didn’t
directly promise weight loss or other health benefits. The use of attractive,
fit models in the ads couldn’t reasonably be understood to convey any specific
meaning. The ABA blog posts also emphasized “that other lifestyle changes
beyond merely drinking diet soft drinks are necessary to see weight-loss
results.”  And the survey wasn’t
well-described by the complaint, but it appears to have asked four questions to
gauge consumer expectations of diet soft drinks related to one’s weight. “Of
the California consumers, only 12.5 percent expected diet soft drinks to help
them lose weight (compared to 15 percent nationwide), while 63.3 percent
expected diet soft drinks to help maintain/not affect their weight (compared to
62 percent nationwide).”  Even accepting
these allegations as true, “a reasonable consumer would still understand ‘diet’
in this context to be a relative claim about the calorie or sugar content of
the product. The survey does not address this understanding or the equally
reasonable understanding that consuming low-calorie products will impact one’s
weight only to the extent that weight loss relies on consuming fewer calories
This is just a refusal to go beyond the literal to the
implied: of course consumers are likely to understand “fewer calories.” But the
question we usually ask with surveys is: what does the literal meaning of the challenged statement mean
to them? Here, the court just ignores implication (and seems to declare
more than 2/3 of consumers unreasonable). Without at least some other
principle, like cost-benefit analysis (the term might convey useful information
as well as deceptive information and it might be too hard to reduce deception)
I think this is a mistake. If Congress could rely on studies about
misunderstandings of low-tar representations to regulate tobacco, why is this survey result not relevant to the implications of “diet” for soda?
Anyway, this reasoning also doomed Becerra’s deceptive omission
theory: “Because she has failed to sufficiently allege a weight-loss promise
from Dr Pepper, there was nothing deceptive about Dr Pepper not disclosing to
consumers the alleged possibility of weight gain.”

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