Diet Pepsi Class Action Shouldn’t Have Been Dismissed, Plaintiffs Say

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Last week, 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.

According to the Diet Pepsi class action lawsuit, Diet Pepsi is sweetened with aspartame, a no-calorie sweetener.

The plaintiffs allege that PepsiCo’s use of the term “diet,” the lack of calories in the beverage, and the manner in which Diet Pepsi is marketed leads consumers to reasonably believe that drinking Diet Pepsi will assist in weight loss or healthy weight management.

“However, the science demonstrates that the artificial sweeteners in Diet Pepsi can interfere with the body’s metabolism, cause weight gain, increase risk of chronic disease, and are otherwise not useful in promoting healthy weight management,” plaintiffs-appellants Elizabeth Manuel and Vivien Grossman argue to the 2nd Circuit.

“Accordingly, PepsiCo’s marketing the product as ‘diet’ is likely to mislead reasonable consumers, in violation of New York’s consumer protection statutes.”

Manuel and Grossman say that the district court erred when it dismissed the case on May 17 after finding the plaintiffs’ allegations implausible.

Because the Diet Pepsi class action lawsuit was dismissed with prejudice, the plaintiffs were not given an opportunity to file an amended complaint. They subsequently filed an appeal and asked the 2nd Circuit to reverse the district court’s dismissal.

The plaintiffs argue that the district court erred in three ways when it dismissed their Diet Pepsi class action lawsuit. First, the judge failed to accept their allegations about the challenged statements regarding Diet Pepsi as true, when the message conveyed by the challenged statements are actually a factual question that should be resolved later in the litigation proceedings, Manuel and Grossman argue.

Second, they claim the district court prematurely analyzed and weighed the scientific studies presented in support of the plaintiffs’ claims and determined that the plaintiffs failed to show proof of causation. “Such weighing of evidence at this early stage, and without the benefit of expert testimony, was premature,” Manuel and Grossman state. They claim the evidence they provided was adequate to show that their allegations about PepsiCo’s advertising of Diet Pepsi are plausible.

Third, Manuel and Grossman claim that the district court erred by failing to give them an opportunity to file an amended Diet Pepsi class action lawsuit and address the court’s concerns. The court also denied the plaintiffs’ request for oral argument and did not consider how their complaint could have been amended to better support the claims.

“Each of the foregoing errors requires reversal,” Manuel and Grossman write.

The Diet Pepsi class action lawsuit was filed in New York federal court in October 2017. PepsiCo filed a motion to dismiss the case, and the plaintiffs’ lawyers fought unsuccessfully to keep the Diet Pepsi class action lawsuit alive.

The plaintiffs are represented by Abraham Melamed of Derek Smith Law Group PLLC and John K. Weston of Sacks Weston Diamond LLC.

The Diet Pepsi False Advertising Class Action Lawsuit is Elizabeth Manuel, et al. v. Pepsi-Cola Co., Case No. 18-1748, in the 2nd U.S. Circuit Court of Appeals.