18‐3548‐cv
Geffner v. The Coca‐Cola Company




                                       In the
             United States Court of Appeals
                           for the Second Circuit


                                   AUGUST TERM 2018

                                    No. 18‐3548‐cv

   EVAN GEFFNER AND IVAN BABSIN, ON BEHALF OF THEMSELVES, ALL
       OTHERS SIMILARLY SITUATED, AND THE GENERAL PUBLIC,
                      Plaintiffs‐Appellants,

                                          v.

                           THE COCA‐COLA COMPANY,
                               Defendant‐Appellee.



             On Appeal from the United States District Court
                 for the Southern District of New York



                              ARGUED: JUNE 19, 2019
                              DECIDED: JUNE 27, 2019



Before: CABRANES, RAGGI, and DRONEY, Circuit Judges.
      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.




                          JOHN K. WESTON, (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.

                          JANE METCALF (Steven A. Zalesin, Catherine
                          A. Williams, Michael Sochynsky, on the




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                          brief), Patterson Belknap Webb & Tyler LLP,
                          New York, NY, for Defendant‐Appellee.




PER CURIAM:

      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 Coke




                                   3
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.




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                                  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).




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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.
       10See 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).
       11See 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).




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       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 (11th 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.




                                             7
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.




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         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.




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