In Geffner v. Coca-Cola Co., No. 18-3548 (2nd Cir., 2019), the Second Circuit affirmed the district court’s dismissal of an action alleging that Coca?Cola violated several provisions of New York State law through misleading naming and marketing of its soft drink “Diet Coke.”
?[C]onsistent with the rulings of every court that has addressed this issue,” the panel affirmed the dismissal of Evan Geffner and Ivan Babsin’s suit against The Coca-Cola Co., finding that the word “diet” when applied to soft drinks only refers to caloric content and not to any promise it will help with weight loss or maintenance.
The Court held that when included in a soft drink title, the adjective “diet” (1) refers specifically to caloric content rather than a generic promise of weight?loss, and (2) carries a primarily relative (in relation to the non?diet soft drink equivalent), rather than an absolute, meaning. Therefore, the court found that plaintiffs’ allegations of false statements or conduct implausible on their face and held that the district court properly dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6).
Here, the third time was not the charm for diet soda drinkers. As the complaint concedes that Diet Coke has fewer calories than Coca-Cola, the claims fall flat, the panel wrote, noting that this is the third case in the last few months where the Second Circuit has heard and rejected almost identical claims, brought by clients of the same attorneys. In March, the Second Circuit rejected similar claims about the labeling of Diet Pepsi, and in April, a suit over Diet Dr Pepper was likewise dismissed.