Becerra V. Dr Pepper/Seven Up: a Victory Over the Space Aliens

LOS ANGELES & SAN FRANCISCO www.dailyjournal.com TUESDAY, FEBRUARY 11, 2020 PERSPECTIVE Becerra v. Dr Pepper/Seven Up: A victory over the space aliens By Matthew Levitt The Becerra case, howev- and Neil Coulson er, is part of a notable trend in recent consumer class actions. s last year drew to a Plaintiffs’ counsel seize upon close, the 9th U.S. Cir- a word or other characteristic A cuit Court of Appeals of a product label and interpret affirmed U.S. District Judge it as if they, and by extension William H. Orrick III’s deci- American consumers, were sion in Becerra v. Dr Pepper/ newly arrived space visitors Seven Up, 2019 DJDAR 12144 who do not have years of ex- (9th Cir. Dec. 30, 2019), dis- perience with the marketing missing a false advertising case of products and services, and challenging the use of the word understand nothing about the “diet” on the cans and bottles context in which words are of the popular sugar-free soft Daily Journal photo used. That has been a feature drink, Diet Dr Pepper. The cen- of the most ridiculed consumer tral allegation of the Becerra Judge William Orrick rejected the premise that class actions of the past, such complaint was that “Because survey data must be taken as truth on a motion to as the allegation that Froot of the product’s use of the term dismiss. These are important precedential findings Loops cereal misrepresented ‘diet,’ its lack of calories, and to the extent that plaintiffs continue to plead about itself as containing real fruit, as the manner in which DPSU if Earth consumers knew noth- questionable survey and similar data in support of markets it, consumers reason- ing about grain-based, sweet- ably believe that drinking Diet otherwise implausible false-advertising allegations. ened cereals. Videtto v. Kel- Dr. [sic] Pepper will assist in logg, 08-cv-1324 (E.D. Cal.). weight loss or healthy weight many calories and fat,” or nobody thinks it means that Competitors are not immune management.” They cited eight “Jeanine subsists almost en- all of America has suddenly from the space-alien approach different dictionary definitions tirely on a diet of caviar and adopted the same weight-loss in some Lanham Act cases, as of diet, all of them similar to boxed red wine.” It can refer regimen. To think such a thing, POM Wonderful showed in “a regimen of eating and drink- to a specific eating plan, often one would have to be oblivious the 2000s when it sued four ing sparingly so as to reduce temporary and in the service of to the context in which words rival juice companies for using one’s weight.” The complaint a goal such as weight loss. Or, are used. An alien visitor from “pomegranate” on their labels supported its contentions with it can refer to a beverage hav- space, still getting accustomed as if it were a claim that the a near-disturbing focus on ing little or no sugar, often arti- to the ways of Earthlings, drinks were substantially made the “extremely fit bodies” of ficially sweetened, and often in might excusably be confused of pomegranate juice, only to models used in Dr Pepper ad- contrast with a sugar-contain- as to the usage of “diet” in be informed via four not-liable vertisements, although the ads ing, non-diet product line by such a context. A reasonable verdicts that Earth jurors know themselves were not the sub- the same maker. consumer — the hypothetical the difference between a flavor ject of challenge. Although “diet” can have creature employed by the law designator and an ingredient The word “diet” can mean several meanings, it is rarely to help determine the plausi- statement. POM Wonderful v. any of several things. It can ambiguous which one is ap- bility of a deceptive advertising Coca-Cola Co., 2:08-cv-6237 refer to the totality of an in- propriate in a given context. claim — would not. (C.D. Cal.); POM Wonderful dividual or group’s nutrition- When the National Cancer In- v. Ocean Spray Cranberries, al consumption, as in, “The stitute publishes a report on the In Court, No One Inc., 2:09-cv-565 (C.D. Cal); American diet contains too status of the “American Diet,” Can Hear You Scream POM Wonderful v. Tropicana Products, 2:09-cv-566 (C.D. dismissing the case, showed of the unreasonable ones. In otherwise implausible false-ad- Cal.); POM Wonderful v. every sign of being an expe- 2020, it almost seems quaint vertising allegations. Welch’s, 2:09-cv-567 (C.D. rienced Earthling with his to posit that no more than 20% The plaintiffs’ firms that filed Cal.). Extraterrestrial influence use of the all-important word, of American consumers could the Becerra case have filed oth- can even be found in cases “context”: “[W]hen viewed in interpret something unreason- er challenges to the same and such as the recent rash of ac- the context of a ‘Diet Dr Pep- ably; it’s too easy to think of other diet soft drinks in differ- tions against outlet mall retail per’ label, it is not likely that patently unreasonable beliefs ent courts. California courts stores, alleging that such stores a reasonable consumer would to which much larger propor- in Becerra v. Coca-Cola Co., disguise made-for-outlet mer- interpret ‘diet’ in the manner tions of Americans seem deep- 17-civ-5916-WHA (N.D. Cal.) chandise as if it were main-line Becerra suggests.” As the court ly committed, let alone ready and New York courts in Man- product marked down — as if pointed out, the plaintiff cited to interpret from a soft drink uel v. Pepsi-Cola Co., 17-civ- consumers just returned from definitions “selectively” from can. Judges are therefore em- 7955-PAE (S.D.N.Y.), and Ex- a long interstellar voyage and different contexts. The court powered to overrule the pop- cevarria v. Dr. Pepper Snapple missed the last 30 years of how even followed the dictionary ulist approach to consumer Group Inc., 17-civ-7957-GBD outlet stores have evolved. links cited by Becerra, finding reasonableness. Thus, although (S.D.N.Y.), reached the same To review a bit of beverage others from the same sources the Becerra plaintiffs bolstered result, with the last-mentioned history on this planet, the first that sound much more like a their third amended complaint affirmed by the 2nd Circuit last national diet soda brands were diet soft drink — e.g., “con- (following a prior dismissal April. Most of these decisions introduced in the 1960s. By taining much less sugar than with leave to amend) with the are unpublished, and the 2nd 1965, Diet Dr Pepper —the usual and often sweetened ar- results of a survey supposedly Circuit ruling is a non-prec- subject of this suit — exist- tificially, or containing less fat finding that over 75% of con- edential “Summary Order.” In ed, as did Diet Pepsi and Co- than usual.” The court found, sumers “expect a diet soft drink the 9th Circuit’s recent deci- ca-Cola’s Tab. Their popularity again using that key word, that to either help them lose weight, sion, however, we finally have soared during the 1980s, and “in the context of soft drinks it or help maintain or not affect a public, appellate repudiation diet versions of other, non-car- is unambiguous that is signals their weight,” it was unavail- of space-alien pleading that bonated ready-to-drink bev- only a soft drink’s relative- ing. isn’t hidden away in a judicial erages, such as iced teas, also ly less sugar or calories when Nevertheless, it takes some Area 51. became commonplace. They compared to its regular coun- nerve for a court to dismiss a rank among the most popular terpart.” It was logic than even case in spite of a survey ap- August Horvath, a partner beverages, and consumers are a space alien could understand. parently showing that such a and co-chair of Foley Hoag’s very familiar with what they By Grabthar’s Hammer, its large percentage of consumers Advertising & Marketing prac- are: versions of other popu- sugar free! receive a misleading message. tice, is a noted advertising lar beverages modified by the Judge Orrick spent some time and marketing attorney. He substation of low-calorie or Close Encounters of critiquing the survey, but ul- defends false-advertising no-calorie sweeteners for sug- the Survey Kind timately held that a purport- cases in courts and regulato- ar, while otherwise attempting When false-advertising cases ed survey does not establish ry forums, counsels clients on to replicate the taste profile of get into the expert discovery a plausible misleading adver- how to substantiate and de- the non-diet product. stage, the standard method for tising claim in the absence of fend marketing claims, and Although consumption of showing that a food container “other plausible allegations helps them challenge false a diet soda may be consistent communicates a specified false that could permit a reasonable and disparaging advertising with going on a diet, in the message is a consumer survey. inference a product is mislead- by their competitors. sense of a special eating regi- Typically, the threshold is that ing.” This is true in part be- men for weight control, no rea- if at least 20% of consumers cause a court cannot properly sonable consumer views “diet” report understanding the false evaluate the methodology of on a container of diet soda as message, then it is commu- a survey based on just what is a representation that consum- nicated to a reasonable con- pled in a complaint, and Judge ing the product is tantamount sumer.

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