Pepsi Tries to Dodge ‘Diet’ Drinks Class Action Lawsuit

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In a recent filing, Pepsi argues that a class action lawsuit alleging it deceives the public with “diet” drinks that cause weight gain should be dismissed because the claims are preempted by the FDA.

Lead plaintiffs alleged in their class action lawsuit that recent research shows fake sweeteners used in diet drinks, like Diet Pepsi, actually causes weight gain. Pepsi wants the class action tossed because it says the claims are preempted by Food and Drug regulations.

“For decades, [Pepsi] has labeled its popular zero-calorie soft drink with the brand name ‘Diet Pepsi’ with the express approval of Congress and the U.S. Food and Drug Administration (‘FDA’),” notes Pepsi in its motion to dismiss the class action.

“Nevertheless, in this case, Plaintiffs seek to substitute their own opinion for the considered judgment of both Congress and FDA. Despite federal law expressly authorizing use of the claim ‘diet’ in connection with soft drinks that are ‘low calorie,’ Plaintiffs contend the name Diet Pepsi promises consumers weight-loss benefits and ask this Court to hold PepsiCo liable for damages based on their conjecture that the artificial sweetener in Diet Pepsi purportedly causes weight gain.”

Pepsi argues that it was within its rights to use the word “diet” in its labeling. Under the Nutrition Labeling and Education Act, says Pepsi’s motion to dismiss, “diet” is allowed to be used for drinks that have 40 calories or less per serving, says the beverage maker.

“Over the past 25 years, FDA has had numerous opportunities to revisit these regulations governing diet soft drinks in response to citizens’ petitions or through standard notice­and­comment rule­making,” said the motion to dismiss. “It has never done so.”

Pepsi also argues the class action lawsuit should be dismissed because the study their claims are based on does not name Diet Pepsi. Further, says Pepsi, the study did not establish how diet soda causes weight gain.

“Even giving plaintiffs every benefit of the doubt and reading the complaint in the light most favorable to them, not one of these studies looks at Diet Pepsi in particular or purports to find causation between the levels of artificial sweetener present in Diet Pepsi and weight gain,” argued the beverage maker.

According to the Pepsi class action lawsuit, recent studies revealed that non-calorie sweeteners like the ones used in Diet Pepsi can drive appetite, fueling weight gain. The plaintiffs alleged that they had all imbibed Diet Pepsi as a part of weight loss and management efforts. They say they relied on the use of the word “diet” when purchasing the beverage, but allege that they were deceived into thinking Diet Pepsi was a good choice.

Similar class actions have been filed against Coca-Cola and other beverage makers alleging so-called diet beverages containing artificial sweeteners can also lead to weight gain and increase the risk of metabolic disease and diabetes.

The plaintiffs are represented by Derek T. Smith and Abraham Z. Melamed of the Derek Smith Law Group PLLC, Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger of The Law Office of Jack Fitzgerald PC, and Andrew Sacks and John Weston of Sacks Weston Diamond LLC.

The Diet Pepsi False Advertising Class Action Lawsuit is Manuel, et al. v. Pepsi-Cola Co., Case No. 1:17-cv-07955, in the U.S. District Court for the Southern District of New York.

UPDATE: On Aug. 3, 2018, plaintiffs seeking to represent a Class of Diet Pepsi buyers asked the 2nd U.S. Circuit Court of Appeals to revive a class action lawsuit alleging Pepsi-Cola Co. misrepresents its “diet” drinks as assisting with weight loss or healthy weight management.