Earlier this year, an entity using the moniker “U.S. Right to Know” filed separate petitions with the Federal Trade Commission and the Federal Drug Administration contending that American consumers are being deceived by use of the term “diet” on or in relation to soft drinks that contain “non-nutritional artificial sweeteners” (NNAS) such as aspartame. Under The Food, Drug and Cosmetic Act, terms like “diet” may be used in the brand of a soft drinks in certain circumstances. These petitions, however, cited to research suggesting that “diet” soft drinks and other artificially sweetened products actually contribute to weight gain in consumers. The petitions asked these federal regulators to address this perceived misleading advertising.
Late last month, the FTC responded, announcing it would not initiate an investigation. A few days later, the FDA issued a letter advising that it needed more time to address the claims.
Principally at issue in these citizen’s petitions is whether using the term “diet” in the brand names of soda products, like Diet Coke and Diet Pepsi, deceives consumers by suggesting those soft drinks actually promote weight loss. According to the petitions, reasonable consumers buy diet soft drinks believing that their consumption will result in weight loss. Whether consumer are deceived or mislead by use of a term must necessarily be predicated on what consumers actually understand that term signifies in a particular context. Here, the consumer group’s petitions were devoid of evidence to support its contentions that consumers actually buy “diet” sodas because they believe their mere consumption will result in actual weight loss.
As the United States Supreme Court found in the matter of POM Wonderful v. The Coca-Cola Company, Inc., statements or terms allowed by FDA regulation for particular products may nonetheless serve as a basis for false advertising if the context of the statement is found to be misleading to consumers. In that vein, U.S. Right to Know’s petitions focus on a term — “diet” — specifically allowed by FDA regulations for soft drinks using NNAS. These petitions, however, seem to be directed to the science of whether NNAS might actually promote weight gain in consumers. The American Beverage Association and other industry groups strongly dispute this assertion and cite to studies showing that drinking diet beverages helps people lose weight.
The true motivation of U.S. Right to Know is, frankly, unknown, although a citizens petition to the FTC can be a precursor to consumer class action lawsuits claiming deceptive trade practices in false or misleading labeling and advertisements. So for now, the jury is out on whether advertising or promoting consumables using the term “diet,” regardless if that usage is compliant with FDA regulations, could nonetheless land you in court.