Coca-Cola Seeks Dismissal of Diet Coke Class Action Lawsuit

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Coca-Cola asked a New York federal court to toss a class action lawsuit alleging the company’s use of the name “Diet Coke” is misleading.

The company argues that claims against its use of the word “diet” in marketing its Diet Coke product are preempted by a federal law that allows companies to use the term diet to not only describe products that help consumers lose weight, but also to those that contain zero-calories.

In October 2017, plaintiffs Even Geffner and Ivan Babsin filed a class action lawsuit against Coca-Cola alleging that the company’s Diet Coke product actually causes consumers to gain weight. The consumers claim that the product’s non-calorie sweetener, aspartame, confuses the body’s metabolic response and causes the body to store calories in the form of fat as a result.

The consumers went on to cite studies showing the link between aspartame and weight gain, and that aspartame is associated with conditions like metabolic disease, diabetes, and cardiovascular disease.

The Diet Coke false advertising class action lawsuit claims that Coca-Cola intentionally misleads consumers by using the term “diet,” and that in the face of the United States’ allegedly rising obesity epidemic, plays to consumers’ preference for foods that aid in weight loss.

As a result, the consumers seek damages for themselves and similarly affected New York residents who believe they were misled by Coca-Cola’s advertising, and seek a court injunction to prevent Coca-Cola from marketing the Diet Coke product as “diet” and to require the company to launch a corrective advertising campaign.

This week, The Coca-Cola Company urged a New York federal court to dismiss the lawsuit. The company says that the consumers’ claims are invalid, stating that the Federal Food, Drug, and Cosmetic Act allows soft drinks developed before 1989 to continue to be marketed under the word “diet” if they contain zero calories, even if the drink does not technically precipitate weight loss.

In response to the consumers’ attempt to use a New York state law against misrepresentation to allege that the product’s advertising was misleading, the company claims that “where, as here, the FDCA provides a uniform definition for a term such as ‘diet,’ a private litigant may not speak to utilize state law to assert that the use of the term is ‘false or misleading.’”

Coca-Cola attempted to shut down the consumers’ allegations of misrepresentation by stating that “plaintiffs thus ask the court to disregard the definition of ‘diet’ embraced by both FDA and modern English dictionaries, and to find that the name ‘Diet Coke’ is false or misleading because it does not live up to their understanding of what a ‘diet’ beverage should be.”

Coca-Cola goes on to argue that the evidence the consumers provided to establish that diet coke causes weight gain was insufficient. Rather, the company claims that the consumers only successfully established a correlation between consumers who drink Diet Coke and those who are overweight.

Geffner and Babsin are represented by Derek T. Smith and Abraham Z. Melamed of 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 Coke Class Action Lawsuit is Evan Gaffer, et al. v. The Coca-Cola Company, Case No. 1:17-cv-07952-LLS, in the U.S. District Court for the Southern District of New York.