Pepsi, Coca-Cola, Dr. Pepper/Snapple Co. Hit with Separate Class Actions Over Use of the Word ‘Diet’ [UPDATE]

[Update: On April 18, 2018, the third lawsuit displayed at the bottom of this page—Excevarria et al. v. Dr. Pepper Snapple Group, Inc. et al.—was dismissed without prejudice by United States District Court Judge George B. Daniels. Judge Daniels wrote that his order is in line with a late-March 2018 dismissal of two similar lawsuits in which he said he agreed with Dr. Pepper Snapple Group’s argument that “it is not plausible that a reasonable consumer would believe that drinking Diet Dr. Pepper would assist in weight loss.”

The plaintiffs in Excevarria et al. v. Dr. Pepper Snapple Group, Inc. et al. have until May 18, 2018, to file an amended complaint. ]

The heavyweights of the soft drink industry have been hit with separate proposed class action lawsuits that allege their use of the word “diet” in the marketing, advertising and sale of their sodas is false and misleading, as a reasonable consumer, the lawsuits say, could mistakenly believe drinking diet soda will assist in weight loss or management. The lawsuits, filed in New York on October 16, specifically allege that since the defendants’ “diet” drinks are sweetened with aspartame, the beverages, scientifically, do not aide the body’s ability to metabolize calories, the process for which controls weight gain and loss.

Which companies—and which sodas—are named in the lawsuits?

The defendants in the respective lawsuits are Pepsi-Cola Company, The Coca-Cola Company, and Dr. Pepper Snapple Group Inc. and Dr. Pepper/Seven Up, Inc., whose flagship diet drinks—Diet Pepsi, Diet Coke and Diet Dr. Pepper—share the non-caloric artificial sweetener aspartame as a common ingredient.

What do the lawsuits allege?

The lawsuits—which contain almost identical language, save for the defendants’ and their products’ names—argue that the companies’ representations of the no-calorie “diet” sodas (or soft drinks or pop, depending on which part of the country you call home) inherently imply that the drinks will assist in weight loss. To the contrary, the complaints assert, the products’ inclusion of aspartame, which the cases mention has been scientifically proven to likely cause weight gain if frequently consumed, makes the companies’ representations of their “diet” products false and misleading.

According to the complaints, Pepsi, Coca-Cola and Dr. Pepper/Snapple are (or reasonably should be) aware of published scientific evidence that proves aspartame consumption can lead to weight gain. Despite this, the lawsuits argue, the companies have continued to falsely and misleadingly promote zero-calorie Diet Pepsi, Diet Coke and Diet Dr. Pepper as “diet,” since this position is a major driver of sales for the beverages.

“Moreover, while touting [Diet Pepsi/Diet Coke/Diet Dr. Pepper] as ‘diet,’ and containing zero calories, [Pepsi/Coca-Cola/Dr. Pepper] deceptively omitted material information, namely that despite its lack of calories, the consumption of [Diet Pepsi/Diet Coke/Diet Dr. Pepper] can lead to weight gain and contribute to metabolic disease, diabetes, and cardiovascular disease,” each lawsuit claims.

Moreover, the lawsuits claim the defendants violated FDA and New York state food labeling rules that explicitly prohibit labeling that is “false or misleading in any particular.”

The plaintiffs’ alleged experiences

The six named plaintiffs behind each lawsuit (two per complaint) have reportedly struggled with obesity for many years, in large part because they believed, the complaints say, that the defendants’ “diet” sodas would “contribute to healthy weight management” and would not lead to weight gain since they contain zero calories. Described in the lawsuits as “frequent” purchasers of Pepsi, Coca-Cola and Dr. Pepper diet sodas, the plaintiffs allege they would not have paid the prices they did or bought the beverages at all had they known Diet Pepsi, Diet Coke and Diet Dr. Pepper were, as they claim, artificially and fraudulently labeled.

Who’s covered by the lawsuits?

Each lawsuit seeks to cover a class of consumers in New York who purchased either Pepsi, Coca-Cola or Dr. Pepper’s diet beverages between October 16, 2011 and the present.

The full complaints can be read below.