Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Becerra v. Dr Pepper/Seven Up, Inc.

United States Court of Appeals, Ninth Circuit

December 30, 2019

Shana Becerra, on behalf of herself, all others similarly situated, and the general public, Plaintiff-Appellant,
v.
Dr Pepper/Seven Up, Inc., Defendant-Appellee.

          Argued and Submitted December 4, 2019 San Francisco, California

          Appeal from the United States District Court D.C. No. 3:17-cv-05921-WHO for the Northern District of California William Horsley Orrick, District Judge, Presiding

          Jack Fitzgerald (argued), Trevor M. Flynn, and Melanie Persinger, The Law Office of Jack Fitzgerald PC, San Diego, California; Andrew Sacks and John Weston, Sacks Weston Diamond LLC, Philadelphia, Pennsylvania; for Plaintiff-Appellant.

          Evan A. Young (argued), Baker Botts L.L.P., Austin, Texas; Van H. Beckwith, Baker Botts L.L.P., Dallas, Texas; Ariel D. House, Baker Botts L.L.P., San Francisco, California; for Defendant-Appellee.

          Before: Eugene E. Siler, [*] Jay S. Bybee, and Ryan D. Nelson, Circuit Judges.

         SUMMARY [**]

         California Consumer Fraud

         The panel affirmed the district court's dismissal of plaintiff's third amended complaint alleging that Dr Pepper/Seven Up, Inc. violated various California consumer-fraud laws by branding Diet Dr Pepper using the word "diet."

         The panel held that the allegations in the complaint failed to sufficiently allege that reasonable consumers read the word "diet" in a soft drink's brand name to promise weight loss, healthy weight management, or other health benefits. The panel held that diet soft drinks are common in the marketplace and the prevalent understanding of the term in that context is that the "diet" version of a soft drink has fewer calories than its "regular" counterpart. Just because some consumers may unreasonably interpret the term differently does not render the use of "diet" in a soda's brand name false or deceptive. Accordingly, because plaintiff had not sufficiently alleged that Diet Dr Pepper's labeling was false or misleading, dismissal was proper.

          OPINION

          BYBEE, CIRCUIT JUDGE.

         Appellant Shana Becerra sued appellee Dr Pepper/Seven Up, Inc. (Dr Pepper), alleging that Dr Pepper violated various California consumer-fraud laws by branding Diet Dr Pepper using the word "diet." After the district court dismissed her third amended complaint with prejudice, Becerra appealed. We affirm the judgment.

         I

         In October 2017, Becerra filed her initial complaint, alleging that Dr Pepper's naming and marketing of Diet Dr Pepper violated various provisions of California state law. She then amended the initial complaint to correct the name of the defendant, and Dr Pepper moved to dismiss the amended complaint. Becerra again amended her complaint in response to the motion to dismiss. Becerra's second amended complaint alleged that the label "diet" misled Diet Dr Pepper consumers by promising that the product would "assist in weight loss" or at least "not cause weight gain." Becerra relied on several studies to allege that aspartame, the artificial sweetener used in Diet Dr Pepper, "is likely to cause weight gain" and "poses no benefit for weight loss," rendering the promise allegedly inherent in the word "diet" false and misleading. The second amended complaint raised five causes of action: (1) violations of the California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq.; (2) violations of the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.; (3) violations of the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq.; (4) breach of express warranty in violation of Cal. Com. Code § 2313(1); and (5) breach of the implied warranty of merchantability in violation of Cal. Com. Code § 2314.

         Dr Pepper moved to dismiss the second-amended complaint and the district court granted the motion without prejudice, concluding that Becerra failed to sufficiently allege that reasonable consumers would understand "diet" in a soft drink's brand name to promise weight loss and that, even if she had, the scientific studies she cited failed to support her ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.