In the Courtroom: Soda Titans Under Fire Over “Diet” Claims; Forager Sued

SODA TITANS UNDER FIRE OVER “DIET” CLAIMS

Is it reasonable to expect a “diet” product will help you lose weight?

That’s the question at the crux of six separate lawsuits filed against the country’s three largest soft drink manufacturers. The Coca-Cola Company, PepsiCo and Dr Pepper Snapple Group (DPS). The lawsuits allege that, by using the term “diet,” the companies deceive consumers into believing that drinking diet soda will help them slim down.

The six lawsuits were each filed separately on Oct. 16. The plaintiffs, however, are all represented by the same attorneys. Three lawsuits were filed in U.S. District Court in Southern District of New York, while the rest were filed in U.S. District Court for Northern District of California. The language in each complaint is identical, with each stating: “Because of the product’s use of the term ‘diet,’ and its lack of calories, consumers reasonably believe that drinking… will assist in weight loss or management.”

According to the suits, aspartame, the non-nutritive sweetener used in Diet Coke, Diet Pepsi and Diet Dr Pepper, “interferes with the body’s ability to properly metabolize calories, leading to weight gain and increased risk of metabolic disease, diabetes and cardiovascular disease.” As such, marketing products made with aspartame as “diet,” the complaint states, is “false, misleading and unlawful.”

“In our opinion, [diet soda] is one of the biggest consumer scams in the last 50 years, and it has to stop,” the plaintiffs’ attorney Abraham Melamed told CBS News. “There’s a strong sense of urgency because there are hundreds of thousands, maybe millions, of consumers out there that are being deceived on a daily basis.”

In an email shared with media outlets, Kate Hartman, a spokesperson for Coca-Cola, dismissed the charges as “completely meritless” and said the company would “vigorously defend” its case. “Diet Coke is a great-tasting, zero-calorie beverage that is and always has been properly labeled and marketed in compliance with all applicable regulations,” Hartman wrote.

A DPS company spokesperson told CBS News the company “stands by our products and believe these lawsuits to be completely without merit.”

Despite the U.S. Food and Drug Administration (FDA) describing aspartame as “one of the most exhaustively studied substances in the human food supply,” with over 100 studies confirming its safety, consumer perception around the ingredient had been shifting for some time before the suits. In July, a study published in the Canadian Medical Association Journal stated that artificial sweeteners, such as aspartame and sucralose, may be associated with long-term weight gain and increased risk of obesity, diabetes, high blood pressure and heart disease.

In 2015, PepsiCo announced the removal of aspartame from Diet Pepsi, based mainly on consumer perception but also due to declining sales for the SKU. “To Diet Pepsi consumers, removing aspartame is their No. 1 concern,” Pepsi senior vice president Seth Kaufman told USA Today at the time.

However, just 10 months later, the company announced the launch of Diet Pepsi Classic Sweetener Blend, suggesting that the move was ineffective in significantly reviving sales. Pepsi does not release sales data for individual products.

“Consumers want choice in diet colas, so we’re refreshing our U.S. lineup to provide three options that meet differing needs and taste preferences,” the company said in a statement at the time. Diet Pepsi Classic Sweetener Blend launched in September.

In related news, a petition demanding The Coca-Cola Company and PepsiCo stop using the term “diet” in advertising, branding and labeling of Diet Coke and Diet Pepsi has been declined by the FDA.

U.S. Right to Know, a consumer watchdog group, filed the petition in April 2015.

In a letter dated Oct. 26, Rebecca Buckner, acting deputy director for regulatory affairs at the Center for Food Safety and Applied Nutrition, said that the agency was denying the petition because “requests for FDA to initiate enforcement action and related regulatory activity are outside the scope of our citizen petition regulations.”

“The advertising of artificially sweetened soda as ‘diet’ may well be one of the greatest consumer frauds of modern times,” said Gary Ruskin, co-director of U.S. Right to Know, in a statement responding to the FDA’s decision. “It is a shame that the FDA is siding with the soda industry against consumers.”

Ruskin criticized the decision as a “strained” interpretation of regulations intended “to avoid taking steps to protect public health.” He added: “In general, the Trump administration has been hostile to consumers and consumer protection.”

CLASS ACTION TARGETS FORAGER PROJECT JUICES

Forager Project, which markets a variety of plant-based food and beverage products, is facing a class action lawsuit alleging that the company is misrepresenting its cold-pressed juices by not disclosing that they are high pressure processed (HPP) on the product labels.

The complaint, filed by plaintiff Josh Berger in U.S. District Court in the Eastern District of New York, alleges that by utilizing HPP, a processing method used to extend shelf life of fresh products, Forager is causing “a compositional change” to its cold-pressed juices “by reducing the biological, enzymatic and bacterial activity that existed after cold-pressing.” Subsequently, according to attorneys for the plaintiff, the use of “cold-pressed vegetables” on the product label is misleading because HPP occurred after cold-pressing and leads consumers to believe that the final consumable product is cold-pressed juice.

“By voluntarily including the first production step used to make the Products and not disclosing any second production step, reasonable consumers get the impression the products are only cold-pressed,” the complaint reads.

Furthermore, the suit takes issue with the brand’s name, alleging that it “contributes to the reasonable consumer’s belief that the product consists of ingredients which have only been cold-pressed.” Attorneys wrote in the complaint that foraging traditionally refers to gathering of food from the environment and not commercial food production, while “‘Project’ connotes a cooperative endeavor” that is not-for-profit.

“The Products and labels differ to the extent of the ingredients used and product names, though representations are substantially similar or identical with respect to material information which applies across the product line.”

The plaintiff is claiming violations of New York consumer protection law, false advertising, fraudulent misrepresentation, implied warranty of merchantability and unjust enrichment. He is seeking class certification, injunctive relief, damages and attorney’s fees.