18

‐ 3548

‐ cv

Geffner v. The Coca

‐ Cola Company



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2018

No. 18

‐ 3548

‐ cv

E VAN G EFFNER AND I VAN B ABSIN

, ON BEHALF OF THEMSELVES

, ALL

OTHERS SIMILARLY SITUATED

, AND THE GENERAL PUBLIC

, Plaintiffs

‐ Appellants

,

v.

T HE C OCA

‐ C OLA C OMPANY

, Defendant

‐ Appellee

.

On Appeal from the United States District Court

for the Southern District of New York

A RGUED : J UNE 19, 2019

D ECIDED : J UNE 27, 2019

Before: C ABRANES

, R AGGI

, and D RONEY

, Circuit Judges

.2 Plaintiffs

‐ Appellants Evan Geffner and Ivan Babsin

(“Plaintiffs”), on behalf of themselves and others similarly situated,

brought a purported class action against Defendant

‐ Appellee The

Coca

‐ Cola Company (“Coca

‐ Cola”) alleging that Coca

‐ Cola 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 weight

‐ loss, and (2) carries a

primarily relative (in relation to the non

‐ diet soft drink equivalent),

rather than an absolute, meaning. Accordingly, we AFFIRM the

October 31, 2018 judgment of the District Court.

J OHN K. W ESTON

, (Abraham Z. Melamed,

Derek Smith Law Group, PLLC, New York,

NY; Jack Fitzgerald, Trevor M. Flynn,

Melanie Persinger, The Law Office of Jack

Fitzgerald, PC, San Diego, CA, on the brief )

Sacks Weston Diamond LLC, Philadelphia,

PA, for Plaintiffs

‐ Appellants.

J ANE M ETCALF (Steven A. Zalesin, Catherine

A. Williams, Michael Sochynsky, on the3 brief ), Patterson Belknap Webb & Tyler LLP,

New York, NY, for Defendant

‐ Appellee.

P ER C URIAM :

Plaintiffs

‐ Appellants Evan Geffner and Ivan Babsin

(“Plaintiffs”), on behalf of themselves and others similarly situated,

brought a purported class action against Defendant

‐ Appellee The

Coca

‐ Cola Company (“Coca

‐ Cola”) alleging that Coca

‐ Cola 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 weight

‐ loss, and (2) carries a

primarily relative (in relation to the non

‐ diet soft drink equivalent),

rather than an absolute, meaning. Accordingly, we AFFIRM the

October 31, 2018 judgment of the District Court.

I. BACKGROUND

On October 16, 2017, Plaintiffs filed their initial complaint,

alleging that Coca

‐ Cola’s naming and marketing of Diet Coke4 violated several provisions of New York State law. 1 In particular,

Plaintiffs allege that the label “diet” misled Coca

‐ Cola consumers by

promising that the soft drink would “assist in weight loss” or at least,

“not cause weight gain.” 2 Plaintiffs also allege that Coca

‐ Cola’s

marketing claims that Diet Coke “will not go to your waist” and “is

suitable for carbohydrate and calorie

‐ reduced 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.” 4

The 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.

1 In their First Amended Complaint, Plaintiffs allege negligent

misrepresentation, intentional misrepresentation and fraud, breach of express

warranty, breach of implied warranty of merchantability, breach of implied

warranty of fitness, violations of New York General Business Law § 349 (unfair

and deceptive business practices) and § 350 (false advertising), and bring a state

restitution claim. App’x 36–43.

2 Id. at 10.

3 Id. at 10–18.

4 Id. at 22–30.5 II. DISCUSSION

We 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.” 6

Each of Plaintiffs’ claims requires that they establish that Coca

‐

Cola 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 Coca

‐ Cola’s advertising.

The use of physically fit and attractive models using and enjoying

advertised products is so ubiquitous that it cannot be reasonably

5 Caro v. Weintraub

, 618 F.3d 94, 97 (2d Cir. 2010).

6 Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009) (internal quotation marks

omitted).

7 See Manuel v. Pepsi

‐ Cola Co.

, 2018 WL 2269247, at *7 (S.D.N.Y. May 17,

2018) (collecting authorities for each of Plaintiffs’ claims); see also Orlander v.

Staples, Inc.

, 802 F.3d 289, 300 (2d Cir. 2015) (requiring “materially misleading”

conduct for violations of New York General Business Law §§ 349 and 350);

Mandarin Trading Ltd. v. Wildenstein

, 16 N.Y.3d 173, 180 (2011) (requiring

“incorrect” information in negligent misrepresentation claims); Premium Mortg.

Corp. v. Equifax, Inc.

, 583 F.3d 103, 108 (2d Cir. 2009) (requiring “a

misrepresentation or a material omission of fact” for all fraud claims); see also

App’x 40–42 (all of Plaintiffs’ breach of warranty claims based on Coca

‐ Cola’s

allegedly inaccurate use of the word “diet” and misleading marketing

representations).6 understood to convey any specific meaning at all. Similarly, the

statement that Diet Coke will “not go to your waist” is so vague and

non

‐ specific a representation that, at most, it amounts to inactionable

“puffery.” 8 As for Coca

‐ Cola’s statement that Diet Coke is suitable for

“carbohydrate and calorie

‐ reduced 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. 9

We 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.

8 See Cohen v. Koenig

, 25 F.3d 1168, 1172 (2d Cir. 1994).

9 App’x 9–10.

10 See Manuel v. Pepsi

‐ Cola Co.

, 763 F. App’x 108 (2d Cir. 2019) (summary

order); Excevarria v. Dr Pepper Snapple Grp., Inc.

, 764 F. App’x 108 (2d Cir. 2019)

(summary order).

11 See Manuel

, 2018 WL 2269247; Becerra v. Dr Pepper/Seven Up, Inc.

, 2018

WL 3995832 (N.D. Cal. Aug. 21, 2018); Becerra v. Coca

‐ Cola Co.

, 2018 WL 1070823

(N.D. Cal. Feb. 27, 2018).7 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 state

‐ law

claims asserted here, that long

‐ standing 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

12 Fink v. Time Warner Cable

, 714 F.3d 739, 742 (2d Cir. 2013).

13 Merriam

‐ Webster’s Collegiate Dictionary (11 th ed.)

14 See 21 U.S.C. § 343®(2)(D); 21 C.F.R. § 105.66 (1989).

15 The nature of this supposed weight loss promise is not entirely clear. At

one point in their complaint, Plaintiffs even suggest that the “diet” label suggests

that Diet Coke will have the same effect on weight as “drinking water.” App’x 10.8 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 “non

‐ diet” 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 causes

‐ of

‐ action lacks a necessary

element. Dismissal was therefore proper. 17

III. CONCLUSION

To 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

16 Id. at 9–10.

17 Iqbal

, 556 U.S. at 678.9 words, it connotes simply that it is lower in calories than the

non

‐ diet version of the same drink.

For the foregoing reasons, we AFFIRM the October 31, 2018

judgment of the District Court.