Hunton Retail Law Resource

The Ninth Circuit Court of Appeals dismissed a consumer-fraud class action lawsuit against Diet Dr Pepper maker Dr Pepper/Seven Up, Inc., holding that use of the word “diet” in the product’s name was not false or deceptive advertising in the proper context of the soft drink market. The court found that, despite allegations that the product was long promoted with advertising featuring thin models, the common consumer would not read the “diet” in a soda’s brand name to promise the weight loss or other health benefits commonly associated with the word. Rather, given the relative ubiquity of diet soft drink products in the marketplace, the reasonable consumer interprets the use of the term as merely a claim that the “diet” version of a soft drink has fewer calories than its “regular” counterpart.