Was Dr Pepper selling snake oil?
California resident Shana Becerra answered with an emphatic yes. She drank Diet Dr Pepper for years, apparently with the expectation that it would turn her form into something more svelte. Alas, it was not to be.
This being America, Becerra filed a federal class-action lawsuit alleging that the good doctor, actually the company that produces the soft drink, had defrauded her.
A California federal court last week ruled against Becerra, an opinion by U.S. Judge Jay Bybee suggesting that, in contemplating litigation, she would have been better served by consulting a lexicographer than a lawyer.
Here are the details as well as a concomitant lesson about the danger of wishful thinking.
Becerra told the court that she drank Diet Dr Pepper for 13 years because she believed it was a weight-losing endeavor.
She said producers advertised their product with attractive, slender models, an implicit suggestion to her that she, too, would take on those characteristics by drinking Diet Dr Pepper. Becerra also alleged that Diet Dr Pepper touts its use of a substitute for sugar — calorie-free aspartame — that is not what it is advertised to be. Aspartame, she alleged, interferes “with the body’s ability to properly metabolize calories, leading to weight gain and increased risk of metabolic disease, diabetes and cardiovascular disease.”
“Accordingly, Dr Pepper/Seven-Up Inc’s marketing Diet Dr Pepper as ‘diet’ is false, misleading and unlawful,” Becerra charged, alleging that the company’s advertising violated California’s consumer protection laws.
For understandable reasons, Becerra’s lawsuit was not well received at the district court level, where U.S. Judge William Orrick dismissed it after allowing Becerra’s lawyer to amend and re-file it three times.
The judge focused on Becerra’s charge that calling a product “Diet Dr Pepper” sends a false message and said her assertions about aspartame are not as scientifically certain as she claimed.
Becerra appealed to the 9th circuit, where a three-judge panel unanimously dismissed her claims.
Before delving into the details, Bybee issued a “you’ve-got-to-be-kidding-me” declaration about Becerra’s allegation of fraud.
“No reasonable consumer would assume that Diet Dr Pepper’s use of the term ‘diet’ promises weight loss or management,” Bybee wrote.
What’s interesting about the courts is that they don’t just throw lawsuits like this into the round file, but explain in detail why they should be dismissed.
Here’s where Bybee provided a valuable lesson on the meaning of the word “diet” that, had she considered it, could have spared Becerra the trouble of going to court.
“We will begin with the observation that Becerra’s citations to dictionary definitions of the word ‘diet’ are citations to the word when used as a verb or noun, as in ‘he is ‘dieting’ or ‘she is starting a diet.’ But, as Dr Pepper and the district court noted, ‘diet’ in Diet Dr Pepper is either an adjective or a proper noun, and that puts the word in a different light. Becerra’s selective quotations omit the definitions of ‘diet’ as an adjective and the frequent use of ‘diet soft drinks’ as the primary example of the word’s usage in that context. For example, the Merriam Webster Dictionary defines the adjective ‘diet’ as ‘reduced in or free from calories — a diet soft drink,” Bybee wrote.
As for the “physically fit model” used in Diet Dr Pepper’s advertisements, Bybee said they are a staple of advertising — “so ubiquitous that it cannot be reasonably understand to convey any specific meaning at all.”
Becerra also filed a similar lawsuit against Diet Coke — with similar results.
Her hope that she and many thousands of other diet soft drink consumer would be compensated for the alleged fraud went up in smoke.
Becerra’s lawyer expressed disappointment with the dismissal. Dr Pepper’s lawyer countered by stating the courts “recognized that law and common sense are on the same side.”
Jim Dey is a staff writer for The News-Gazette. His email is email@example.com.