Geffner v. The Coca-Cola Co.

On Appeal from the United States District Court for the Southern District of New York PlaintiffsAppellants Evan Geffner and Ivan Babsin (“Plaintiffs”), on behalf of themselves and others similarly situated, brought a purported class action against DefendantAppellee The CocaCola Company (“CocaCola”) alleging that CocaCola violated several provisions of New York State law through misleading naming and marketing of its soft drink “Diet Coke.” The District Court (Louis L. Stanton, Judge) dismissed all claims under Federal Rule of Civil Procedure 12(b)(6). Consistent with the rulings of every court that has addressed this issue, we hold that when included in a soft drink title, the adjective “diet” (1) refers specifically to caloric content rather than a generic promise of weightloss, and (2) carries a primarily relative (in relation to the nondiet soft drink equivalent), rather than an absolute, meaning. Accordingly, we AFFIRM the October 31, 2018 judgment of the District Court.PER CURIAMPlaintiffsAppellants Evan Geffner and Ivan Babsin (“Plaintiffs”), on behalf of themselves and others similarly situated, brought a purported class action against DefendantAppellee The CocaCola Company (“CocaCola”) alleging that CocaCola violated several provisions of New York State law through misleading naming and marketing of its soft drink “Diet Coke.” The District Court (Louis L. Stanton, Judge) dismissed all claims under Federal Rule of Civil Procedure 12(b)(6). Consistent with the rulings of every court that has addressed this issue, we hold that when included in a soft drink title, the adjective “diet” (1) refers specifically to caloric content rather than a generic promise of weightloss, and (2) carries a primarily relative (in relation to the nondiet soft drink equivalent), rather than an absolute, meaning. Accordingly, we AFFIRM the October 31, 2018 judgment of the District Court.I. BACKGROUNDOn October 16, 2017, Plaintiffs filed their initial complaint, alleging that CocaCola’s naming and marketing of Diet Coke violated several provisions of New York State law.¹ In particular, Plaintiffs allege that the label “diet” misled CocaCola consumers by promising that the soft drink would “assist in weight loss” or at least, “not cause weight gain.”² Plaintiffs also allege that CocaCola’s marketing claims that Diet Coke “will not go to your waist” and “is suitable for carbohydrate and caloriereduced diets,” and its use of physically fit models in advertisements reinforce this promise of weight loss.³ Finally, Plaintiffs rely on several studies to allege that aspartame (an artificial sweetener contained in Diet Coke) “is likely to cause weight gain” and “does not help with weight loss.”⁴The District Court dismissed all of Plaintiffs’ claims, concluding that Diet Coke’s marketing conveyed only an assertion of reduced calories (rather than a promise of weight loss or weight management) and that Plaintiffs’ cited studies do not show a causal link between aspartame (contained in Diet Coke) and weight gain. Plaintiffs timely appealed.II. DISCUSSIONWe 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 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”⁶Each of Plaintiffs’ claims requires that they establish that CocaCola marketed Diet Coke by means of false or misleading statements or conduct.⁷ We find Plaintiffs’ allegations of such false statements or conduct implausible on their face.First, we reject any claims based on CocaCola’s advertising. The use of physically fit and attractive models using and enjoying advertised products is so ubiquitous that it cannot be reasonably understood to convey any specific meaning at all. Similarly, the statement that Diet Coke will “not go to your waist” is so vague and nonspecific a representation that, at most, it amounts to inactionable “puffery.”⁸ As for CocaCola’s statement that Diet Coke is suitable for “carbohydrate and caloriereduced diets,” Plaintiffs allege no facts to suggest that this statement is false. On the contrary, Plaintiffs themselves acknowledge that “Diet Coke does not contain sugar or calories” in their First Amended Complaint.⁹We turn then to Plaintiffs’ primary theory, i.e., that the “diet” label itself constitutes a misleading statement.We note that this court has twice summarily rejected substantially identical claims (from the same attorneys, no less) in the past few months.¹⁰ Those two decisions affirmed the uniform consensus of the district courts that have addressed similar challenges to diet soft drinks.¹¹ Here, we employ a published opinion to reject Plaintiffs’ claims.As we have previously observed, “in determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial.”¹² The dictionary defines “diet” in the soft drink context as meaning “reduced in or free from calories.”¹³ Consistent with that plain meaning, federal law has long authorized the use of the term “diet” on soft drink labels, where, among other things, it contained low or reduced calories.¹⁴ There is no dispute that Diet Coke meets the federal requirements to be labelled “diet.” While we need not decide whether federal law preempts the statelaw claims asserted here, that longstanding federal regulation is persuasive evidence of the meaning of the label “diet” in the diet-soda context.We therefore conclude that, in the context of soft drink marketing, the term “diet” carries a clear meaning. First, the “diet” label refers specifically to the drink’s low caloric content; it does not convey a more general weight loss promise.¹⁵ This holding alone precludes Plaintiffs’ claims. As we noted above, Plaintiffs expressly concede that Diet Coke does not contain calories.¹⁶ The use of the label “diet” in this context is therefore accurate and lawful.Second, we conclude that, when applied to soft drinks, the label “diet” carries a primarily relative (rather than absolute) meaning. In other words, it connotes simply that the “diet” version of the drink is lower in calories than the “nondiet” version of the drink. Here, Plaintiffs do not dispute that Diet Coke is lower in calories than “regular” Coke. Accordingly, Plaintiffs have failed plausibly to allege that the “diet” label is misleading.Because Plaintiffs have failed plausibly to allege a misleading statement, each of their proposed causesofaction lacks a necessary element. Dismissal was therefore proper.¹⁷III. CONCLUSIONTo summarize, we hold as follows:(1) When applied to soft drinks, the label “diet” refers specifically to the drink’s low caloric content. It does not convey a general weight loss promise.(2) When applied to soft drinks, the label “diet” carries a primarily relative (rather than absolute) meaning. In other words, it connotes simply that it is lower in calories than the nondiet version of the same drink.For the foregoing reasons, we AFFIRM the October 31, 2018 judgment of the District Court.