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Manuel v. Pepsi-Cola Co.

Dismissal of Action Over Use of Adjective 'Diet' in Cola's Marketing Is Explained

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OPINION & ORDER  This case involves a challenge to the use of the word “diet” in connection with the ubiquitous soft drink Diet Pepsi. Plaintiffs Elizabeth Manuel and Vivien Grossman bring this putative class action against defendant Pepsi-Cola Company (“PepsiCo”) alleging unfair and deceptive business practices, false advertising, fraud, negligent misrepresentation, and breaches of express and implied warranties, all arising under New York law and all based — in whole or part — on PepsiCo’s use of the “diet” adjective to describe this beverage. Now pending is PepsiCo’s motion to dismiss plaintiffs’ First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). See Dkt. 27. For the following reasons, the Court grants PepsiCo’s motion and dismisses the complaint in its entirety.I. BackgroundA. Factual Background1In 1964, PepsiCo introduced Diet Pepsi. FAC12. Unlike Pepsi, which contains sugar, Diet Pepsi contains no calories. Id.15. Instead, Diet Pepsi is sweetened with the non-nutritive sweeteners (“NNS”) aspartame acesulfame-potassium and sucralose. Id.1. PepsiCo uses the term “diet” in marketing Diet Pepsi to signal the use of NNS in place of sugar. Id.15.Plaintiffs allege that as a result of PepsiCo’s use of the term “diet” in marketing Diet Pepsi, “consumers reasonably believe that the product will assist in weight loss, or at least healthy weight management, for example, by not causing weight gain.” Id.16. This belief is misplaced, plaintiffs allege, because “[s]cientific evidence demonstrates [that] nonnutritive sweeteners like aspartame acesulfame-potassium and sucralose interfere with the body’s ability to properly metabolize calories, leading to weight gain and increased risk of metabolic disease, diabetes, and cardiovascular disease.” Id.2.Plaintiffs are long-time purchasers and consumers of Diet Pepsi. Id.

53-56. They have also struggled with obesity for many years. Id.

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