The Ninth Circuit delivered a win for food and beverage companies just in time for the new year in a published opinion in Becerra v. Dr Pepper/Seven Up, Inc., — F.3d —, 2019 WL 7287554 (9th Cir. Dec. 30, 2019).
Plaintiff in Becerra alleged that use of the word “diet” to describe Diet Dr Pepper is misleading because it suggests the product will help consumers lose weight. She relied on several scientific studies to allege that aspartame, the artificial sweetener in many diet sodas, “is likely to cause weight gain,” and “poses no benefit for weight loss.” She also relied on the results of a survey that, according to Plaintiff, showed the majority of soft-drink consumers believe “diet” soft drinks will help them lose or maintain their weight. After several rounds of motion to dismiss briefing, the district court dismissed plaintiff’s complaint with prejudice, and plaintiff appealed.