Case Information
‐ ‐ cv Geffner v. ‐ Company
In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. cv
E VAN G EFFNER AND I VAN B ABSIN , ON BEHALF OF THEMSELVES , ALL OTHERS SIMILARLY SITUATED , AND THE GENERAL PUBLIC , Appellants , T HE C OCA C OLA C OMPANY , Defendant Appellee .
On Appeal from United States District Southern
A RGUED : J UNE D ECIDED : J UNE
Before: C ABRANES R AGGI , D RONEY , Circuit Judges .
‐ Appellants Evan Geffner Ivan Babsin
(“Plaintiffs”), on behalf themselves others similarly situated, brought purported class action against Defendant ‐ Appellee The Company (“Coca Cola”) alleging ‐ violated several provisions New State law through naming drink “Diet Coke.” The District (Louis L. Stanton, Judge ) dismissed under Federal Rule Civil Procedure 12(b)(6). Consistent rulings every court addressed issue, hold when included drink title, adjective content rather than generic loss, primarily relative (in relation equivalent), rather an absolute, Accordingly, AFFIRM October judgment Court.
J OHN K. W ESTON (Abraham Z. Melamed, Derek Smith Law Group, PLLC, York, NY; Jack Fitzgerald, Trevor M. Flynn, Melanie Persinger, Law Office Jack Fitzgerald, PC, San Diego, CA, on brief ) Sacks Weston Diamond LLC, Philadelphia, PA, Appellants.
J ANE M ETCALF (Steven A. Zalesin, Catherine A. Williams, Michael Sochynsky, *3 brief ), Patterson Belknap Webb & Tyler LLP, New York, NY, Defendant ‐ Appellee.
P ER C URIAM : ‐ Appellants Evan Geffner and Ivan Babsin
(“Plaintiffs”), behalf themselves others similarly situated, brought purported class action against Defendant ‐ Appellee The Company (“Coca Cola”) alleging Coca ‐ violated several provisions State law through naming marketing drink “Diet Coke.” District (Louis L. Stanton, Judge ) dismissed under Federal Rule Civil Procedure 12(b)(6). Consistent rulings every court addressed issue, hold when included drink title, adjective content rather than generic loss, primarily relative (in relation equivalent), rather an absolute, Accordingly, AFFIRM October 31, judgment Court.
I. BACKGROUND On October filed initial complaint, alleging naming *4 violated several provisions of New York State law. In particular, Plaintiffs allege that misled consumers by promising that would “assist in weight loss” or at least, “not cause weight gain.” Plaintiffs also allege that marketing Diet “will not go your waist” and “is suitable carbohydrate and calorie reduced diets,” and of physically fit models in advertisements reinforce promise of weight loss. Finally, Plaintiffs rely several studies allege aspartame (an artificial sweetener contained Diet Coke) “is likely cause weight gain” and “does not help weight loss.” dismissed of Plaintiffs’ claims, concluding Coke’s conveyed only an assertion reduced calories (rather weight loss weight management) and cited studies do show causal link between aspartame (contained Coke) and gain. timely appealed.
II. DISCUSSION
We review de novo a district court’s grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). [5] “To survive motion dismiss, complaint must contain sufficient factual matter, accepted as true, state claim relief plausible on face.” [6]
Each of Plaintiffs’ claims requires they establish Coca ‐ marketed by means of false or misleading statements or conduct. [7] We find Plaintiffs’ allegations such false statements or conduct implausible on face.
First, reject any claims based on Cola’s advertising. use physically fit attractive models using enjoying advertised products so ubiquitous cannot be reasonably *6 understood to convey any specific meaning at all. Similarly, statement that Coke will “not go to your waist” is so vague specific representation that, most, amounts to inactionable “puffery.” [8] As statement that Coke suitable for “carbohydrate calorie reduced diets,” allege no facts to suggest that this statement false. On contrary, themselves acknowledge “Diet does contain sugar calories” First Amended Complaint. [9]
We turn then Plaintiffs’ primary theory, i.e., itself constitutes statement. We note court twice summarily rejected substantially identical (from same attorneys, no less) past few months. [10] Those two decisions affirmed uniform consensus district courts have addressed similar challenges drinks. [11] Here, employ published opinion reject claims. *7 As we have previously observed, “in determining whether reasonable consumer would have been misled by particular advertisement, context is crucial.” [12] The dictionary defines “diet” in the drink context as meaning “reduced in or free from calories.” [13] Consistent that plain meaning, federal law long authorized the the term “diet” on drink labels, where, among other things, it contained low reduced calories. There is no dispute Coke meets the federal requirements be labelled “diet.” While need not decide whether federal law preempts the state law asserted here, long standing federal regulation persuasive evidence meaning the label “diet” in the ‐ soda context.
We therefore conclude that, context marketing, term “diet” clear First, “diet” label drink’s low content; does not convey more general weight loss promise. This holding alone precludes claims. As noted above, expressly *8 concede Coke does not contain calories. the label “diet” in context is therefore accurate lawful.
Second, conclude that, when applied to drinks, the label “diet” carries a primarily relative (rather than absolute) meaning. In other words, connotes simply the “diet” version is lower calories than “non diet” version drink. Here, Plaintiffs do not dispute lower calories than “regular” Coke. Accordingly, have failed plausibly to allege “diet” label misleading.
Because have failed plausibly to allege statement, each proposed causes action lacks necessary element. Dismissal was therefore proper.
III. CONCLUSION
To summarize, hold as follows: When applied drinks, label “diet” drink’s low content. It does
convey general loss promise. When applied drinks,
primarily relative (rather absolute) In other *9 words, connotes simply it lower calories version same drink. For foregoing reasons, AFFIRM October judgment Court.
[1] In First Amended Complaint, allege negligent misrepresentation, intentional misrepresentation fraud, breach express warranty, breach implied warranty merchantability, breach implied warranty fitness, violations General Business Law § (unfair deceptive business practices) § (false advertising), bring state restitution claim. 36–43.
[2] Id. at 10.
[3] Id. at 10–18.
[4] Id. 22–30.
[5] Caro v. Weintraub , 618 F.3d 94, 97 (2d Cir. 2010).
[6] Ashcroft v. Iqbal , 556 U.S. 662, 678 (internal quotation marks omitted).
[7] See Manuel v. Pepsi Co. , WL 2269247, *7 (S.D.N.Y. May 17, 2018) (collecting authorities for each Plaintiffs’ claims); see also Orlander v. Staples, Inc. , F.3d 289, (2d Cir. 2015) (requiring “materially misleading” conduct for violations General Business Law §§ 350); Mandarin Trading Ltd. v. Wildenstein , N.Y.3d (requiring “incorrect” information negligent misrepresentation claims); Premium Mortg. Corp. Equifax, Inc. F.3d (2d Cir. 2009) (requiring “a misrepresentation material omission fact” fraud claims); see also 40–42 (all breach warranty based allegedly inaccurate word representations).
[8] See Cohen v. Koenig , 25 F.3d 1168, 1172 (2d Cir. 1994).
[9] App’x 9–10.
[10] See Manuel v. Pepsi Co. , F. App’x 108 (2d Cir. 2019) (summary order); Excevarria v. Dr Pepper Snapple Grp., Inc. , F. (2d Cir. 2019) (summary order).
[11] See Manuel , WL 2269247; Becerra v. Dr Pepper/Seven Up, Inc. , WL (N.D. Cal. Aug. 2018); Becerra Co. WL (N.D. Cal. Feb. 2018).
[12] Fink Time Warner Cable F.3d (2d Cir. 2013).
[13] Merriam Webster’s Collegiate Dictionary (11 th ed.)
[14] See U.S.C. § 343®(2)(D); C.F.R. § 105.66 (1989).
[15] nature supposed weight loss entirely clear. At one point complaint, even suggest suggests will have same effect as “drinking water.” 10.
[16] Id. at 9–10.
[17] Iqbal U.S. 678.