Shana Becerra v. Dr pepper/seven Up, Inc.
945 F.3d 1225
9th Cir.2019Background
- Plaintiff Shana Becerra sued Dr Pepper/Seven Up alleging that the brand name "Diet Dr Pepper" is misleading because the word "diet" implies the product will assist with weight loss or healthy weight management. She alleged aspartame (the sweetener) causes weight gain, so the implied promise is false. Claims asserted under California False Advertising Law, Consumers Legal Remedies Act, Unfair Competition Law, and breach of express/implied warranty.
- After two prior amendments and motions to dismiss, Becerra filed a third amended complaint adding dictionary definitions, print/TV ads, two American Beverage Association articles, and a 2018 consumer survey to support the alleged "diet" promise.
- The district court dismissed the third amended complaint with prejudice, concluding no reasonable consumer would read "diet" in a soft‑drink brand name as a weight‑loss or health promise; it also found the aspartame causation allegations insufficient. Plaintiff's counsel agreed at the hearing there was nothing to add, so dismissal was without leave to amend.
- Becerra appealed; the Ninth Circuit reviewed dismissal de novo and applied the California "reasonable consumer" standard for consumer‑protection claims.
- The Ninth Circuit affirmed dismissal on the ground that reasonable consumers understand "diet" in soft‑drink branding as a relative, low‑calorie/sugar designation, not an implicit weight‑loss promise; it did not reach the scientific falsity issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "diet" in "Diet Dr Pepper" implies a weight‑loss or health promise to a reasonable consumer | "Diet" conveys that the drink will assist weight loss or healthy weight management | "Diet" is an adjective/proper noun indicating reduced calorie/sugar relative to the regular product, not a weight‑loss promise | No — court held reasonable consumers read "diet" as a relative low‑calorie label, not a weight‑loss promise |
| Whether the complaint sufficiently alleges falsity (aspartame causes weight gain) | Cited studies purporting to show aspartame likely causes weight gain | Studies insufficient and, in any event, plaintiff failed to plead the antecedent promise | Court declined to reach scientific falsity because the reasonable‑consumer failure was dispositive; district court had found aspartame allegations inadequate |
| Whether ads, ABA posts, and a consumer survey create a plausible claim that consumers are misled | Ads, ABA articles, and survey show consumers expect weight loss/maintenance from "diet" drinks | Ads do not reference weight loss; fit models ubiquitous and non‑specific; survey questions/results are ambiguous | Insufficient — those materials do not overcome the prevailing reasonable understanding of "diet" as calorie/sugar‑relative |
| Whether dismissal without leave to amend was proper | Plaintiff could possibly amend to add missing facts | Plaintiff's counsel conceded no additional facts could be added; the claims fail as a matter of law | Proper — dismissal with prejudice affirmed given counsel's concession and legal insufficiency |
Key Cases Cited
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) (adopts California "reasonable consumer" standard for consumer‑protection claims)
- Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) (marketplace familiarity can defeat a deceptive‑packaging claim)
- Geffner v. Coca‑Cola Co., 928 F.3d 198 (2d Cir. 2019) ("diet" label denotes low calorie content, not a weight‑loss promise)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for Rule 12(b)(6) dismissal)
- Vess v. Ciba‑Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) (Rule 9(b) particularity requirements for fraud pleading)
- Decker v. GlenFed, Inc., 42 F.3d 1541 (9th Cir. 1994) (fraud pleading must identify what is false and why)
- Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486 (Cal. Ct. App. 2003) (rejects "least sophisticated consumer" test; requires reasonable consumer showing)
- Bank of West v. Superior Court, 833 P.2d 545 (Cal. 1992) (public likely to be deceived standard in California consumer cases)