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Diet Soda Makers Sued Over Deceptive, False and Misleading Advertising

Low- or no-calorie artificial sweeteners such as aspartame are typically used to sweeten so-called "diet" foods and beverages in lieu of calorie-rich sugar or high fructose corn syrup. The idea is that consuming fewer calories will result in weight loss. However, research has firmly refuted such claims, showing that artificial sweeteners actually produce the complete opposite effect.

By lowering appetite suppressant chemicals and encouraging sugar cravings, artificial sweeteners actually raise your odds of weight gain. Studies have also shown artificial sweeteners promote insulin resistance and related health problems just like regular sugar does, so claims that "diet" soda and snacks are a safe and healthy option for diabetics are false as well.

False advertising is prohibited by federal law, and the term "diet" is only permitted on brands or labels when it is not false or misleading. Two years ago — in light of the overwhelming amount of research demonstrating that artificially sweeteners actually raise your risk of obesity rather than combat it — the consumer group U.S. Right to Know (USRTK) asked the Federal Trade Commission and the Food and Drug Administration (FDA) to investigate Coca-Cola Co., PepsiCo Inc. and other companies for false advertising.1,2

In its citizen petition to the FDA,3 USRTK asked the agency to issue warning letters to Coca-Cola and Pepsi for misbranding their beverages, as use of the term "diet" is false and misleading. On July 1, 2015, USRTK sent another letter4 to the FDA, urging the agency to stop Coca-Cola Co. from making "illegal claims that its artificially sweetened sodas prevent, mitigate or treat obesity."

In one instance, Coca-Cola Co. had announced5 that its No. 1 "global commitment to fighting obesity" is to "offer low- or no-calorie beverage options in every market." If artificially sweetened beverages promote obesity rather than fight it, then Coca-Cola's commitment is merely worsening the problem. It's also unsupported by a large body of science.

As noted by Gary Ruskin, codirector of USRTK, at the time,6 "Coke is gulling consumers into believing that artificially sweetened soda is a treatment for obesity. Coke is wrong on the facts and the FDA should stop them if they are on the wrong side of the law."

One of the Biggest Consumer Scams in Last 50 Years

For those of you who recall these events and wondered what ever came of it, I can now offer you an important and interesting update. October 16, three separate class-action lawsuits were filed against Coca-Cola Co., PepsiCo, Dr Pepper Snapple Group and Dr Pepper/Seven Up Inc.,7,8,9,10,11 all of whom make and sell "diet" beverages sweetened with aspartame.

As reported by CBS News,12 "The suits allege that the companies' use of the word 'diet' in the beverages' 'false misleading and unlawful' marketing could make a 'reasonable consumer' think the drinks are a diet aid." According to attorney Abraham Melamed:

"What's been going on is clearly deceptive advertising. In our opinion, it's one of the biggest consumer scams in the last 50 years, and it has to stop. 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."

According to the complaints, the beverage makers should be aware of the published evidence against aspartame, which proves the artificial sweetener actually worsens obesity and related health problems. With this knowledge, it stands to reason that continuing to promote no- or low-calorie beverages as "diet" products is a willfully deceptive act aimed to deceive people who want to manage their weight.

The class-action lawsuits also charge the beverage makers with violating FDA and New York state food labeling rules, both of which explicitly prohibit labeling that is "false or misleading in any particular." As one would expect, the companies that have issued public responses to the allegations have all rejected the lawsuits as "meritless" and vow to "vigorously defend" themselves.

Named Plaintiffs Feel Duped and Misled

The named plaintiffs in each complaint — two per lawsuit — report struggling with obesity for many years and "frequently" buying diet sodas, believing this would "contribute to healthy weight management" since such beverages are calorie-free. Each of the complaints note that:

"… While touting [Diet Pepsi/Diet Coke/Diet Dr Pepper] as 'diet,' and containing zero calories, [Pepsi/Coca-Cola/Dr Pepper] deceptively omitted material information, namely that despite its lack of calories, the consumption of [Diet Pepsi/Diet Coke/Diet Dr Pepper] can lead to weight gain and contribute to metabolic disease, diabetes and cardiovascular disease."

According to the plaintiffs, they would not have paid the prices they did, or would not have bought the beverages at all had they known the word "diet" was being used in a deceptive way. While each complaint currently has only two plaintiffs, each of the three lawsuits cover a class of consumers living in New York, who between October 16, 2011, and present day purchased Coca-Cola, Pepsi or Dr Pepper brand diet beverages.

Cheated New Yorkers Can Join the Class Action

If you live in the state of New York, and feel one or more of these companies cheated your efforts to improve your health, consider joining the class action. The following attorneys and firms are reportedly working on the three complaints:

  • Derek T. Smith and Abraham Z. Melamed of Derek Smith Law Group PLLC13
  • Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger of The Law Office of Jack Fitzgerald PC14
  • Andrew Sacks and John Weston of Sacks Weston Diamond LLC15

Evan Geffner and Ivan Babsin are named plaintiffs in the complaint against Coca-Cola Co.. Elizabeth Manuel and Vivien Grossman are named in the complaint against Pepsi-Cola Company, and Yasmin Excevarria and Joette Phoneix are named in the suit against Dr Pepper Snapple Group and Dr Pepper/Seven Up, Inc.16

You can find copies of the three complaints on ClassAction.org.17 The plaintiffs, who are seeking a jury trial, are seeking to prevent the defendants from marketing artificially sweetened beverages as "diet," along with unspecified restitution and damages for the class. They also seek an order "requiring the soda makers to conduct a 'corrective advertising campaign.'"

Recent Meta-Analysis Again Confirms Artificial Sweeteners Don't Work as Advertised

Backing up the accusations in the complaints are studies showing aspartame promotes weight gain despite its lack of calories, and that by interfering with metabolism, it also increases the risk for metabolic diseases such as Type 2 diabetes and heart disease. I published these associations in my book "Sweet Deception" over 11 years ago.

One of the most recent of these studies18 — a scientific review of 37 studies that followed more than 400,000 individuals for an average of a decade — was published this past July in the Canadian Medical Association Journal. As many others before it, this review again linked use of artificial sweeteners such as aspartame and sucralose to obesity, high blood pressure, Type 2 diabetes and heart problems.

These effects were in part attributed to the sweeteners' detrimental effects on metabolism, but also on their adverse effects on gut bacteria. According to Dr. Ryan Zarychanski, assistant professor at the University of Manitoba and one of the authors, "We found that data from clinical trials do not clearly support the intended benefits of artificial sweeteners for weight management."

Research Overwhelmingly Refutes 'Diet' Claims

Research over the last 30 years — including several large scale prospective cohort studies, to which you can now add the one just mentioned above — have shown that artificial sweeteners stimulate appetite, increase cravings for carbs, and produce a variety of metabolic dysfunctions that promote fat storage and weight gain. Below is a sampling of studies published through the years that contradict and refute the beverage industry's claims that diet soda aids weight loss.

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