Diet Pepsi Drinkers Fight to Keep False Advertising Class Action Alive

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Last week, the attorneys representing plaintiffs in a proposed class action lawsuit challenging Pepsi-Cola Co.’s claims that its “diet” drinks promote weight loss asked a New York federal judge to keep the Diet Pepsi class action lawsuit alive.

Attorneys representing plaintiffs Elizabeth Manuel and Vivien Grossman wrote a letter to U.S. District Judge Paul A. Engelmayer noting that a California federal judge had determined last month that similar claims involving The Coca-Cola Co.’s “diet” drinks were not preempted by the federal Food, Drug and Cosmetics Act (FDCA).

Although the Coca-Cola class action lawsuit was ultimately dismissed, the California federal judge noted that the state law claims were not preempted by the FDCA.

“Accordingly, this Court should, respectfully, conclude that the Plaintiffs claims in the present case are not preempted, and that the Plaintiffs have sufficiently alleged that members of the public are likely to be deceived by PepsiCo’s use of the term ‘diet’ on Diet Pepsi and should deny the Defendant’s Motion to Dismiss,” the attorneys urged Judge Engelmayer.

The California class action lawsuit, Becerra v. The Coca-Cola Co., was dismissed last month after the judge determined the plaintiff failed to provide sufficient evidence that the artificial sweeteners in Diet Coke cause weight gain. The California judge also rejected the plaintiff’s claim that Diet Coke was falsely advertised as a weight loss product. He rejected the idea that Coca-Cola’s use of thin people in Diet Coke ads was misleading because consumers expect advertisements to include healthy, attractive actors instead of unhealthy, unfit actors.

Pepsi has argued that the research presented by the Diet Pepsi class action lawsuit plaintiffs is not persuasive because it fails to establish a link between diet soda and weight gain.

However, the plaintiffs disagree and argue that the Coca-Cola plaintiff should not have been held to such a high standard at this stage of litigation. They allege that she only needed to show that her claims were plausible and shouldn’t have needed to show that the product actually caused consumers to gain weight.

The plaintiffs’ attorneys in Diet Pepsi class action lawsuit argued that, unlike the California plaintiffs, Manuel and Grossman have sufficiently argued that reasonable consumers are likely to be misled by the word “diet” and that they would not expect a “diet” product to hinder weight loss efforts or cause weight gain.

Manuel and Grossman filed the Diet Pepsi class action lawsuit in October 2017, alleging that consumers who purchase the “diet” beverage believe that it will help with weight loss or weight management. However, research has reportedly found that the non-calorie sweeteners aspartame acesulfame-potassium and sucralose actually inhibit the body’s ability to burn calories. As a result, consumers who drink zero-calorie beverages that include these ingredients may experience a stalling in weight loss, or they may even gain weight.

The plaintiffs 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 Pepsi False Advertising Class Action Lawsuit is Elizabeth 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.