In the putative class action complaints* - filed in New York on October 16 vs Dr Pepper Snapple Group, The Coca Cola Company, and PepsiCo – the plaintiffs argue that consumers might reasonably believe that zero-calorie sodas labeled as ‘diet’ “will assist in weight loss or management,” when in fact the opposite may be true.
Because the brain perceives the zero-cal beverages to be sweet, it effectively “misreads the number of calories present and reduces metabolism [because it thinks it’s about to get an energy boost], resulting in more calories being stored in the body,” allege the plaintiffs, who are represented by law firms Derek Smith Law Group, The Law Office of Jack Fitzgerald, and Sacks Weston Diamond.
“Non-nutritive sweeteners like aspartame interfere with the body’s ability to properly metabolize calories, leading to weight gain and increased risk of metabolic disease, diabetes, and cardiovascular disease," says the lawsuit vs Coca-Cola [the complaints vs PepsiCo and Dr Pepper Snapple Group are the same]. "Accordingly, Coca-Cola’s marketing of Diet Coke as ‘diet’ is false, misleading and unlawful.”
The FDA and ‘diet’ labeling
While the FDA permits the use of ‘diet’ in the brand name or label of a soft drink (click HERE) it does so “only when it is not false or misleading,” argue the plaintiffs.
They then go on to list a series of academic studies** supporting their arguments, many of which were also cited in a citizen’s petition (filed in April 2015) by US Right to Know, which called on the FDA to declare Diet Coke and Diet Pepsi as misbranded, and urged the agency to investigate ‘diet’ claims on other artificially sweetened foods and beverages.
The same research has also been cited in some ordinances justifying extending sugar-sweetened soda taxes to diet drinks, notably the recently-repealed Cook County IL soda tax.
The FDA is technically still considering the petition, but warned the petitioners not to expect a swift response in a letter dated September 22, 2015 explaining that it had not been able to reach a decision within the 180-day deadline owing to “other agency priorities and the limited availability of resources.”
“In nature, sweetness signals energy. Generally, the greater the sweetness, the more calories that are available, so the human brain has evolved to expect the two to come together. When they do not, the brain can become confused, thinking there are fewer calories to burn. That is, artificial sweeteners, including aspartame, appear to promote weight gain, and to trigger metabolic syndrome and diabetes, because the brain misreads the number of calories present and reduces metabolism, resulting in more calories being stored in the body.”
Geffner et al v. The Coca-Cola Company, 1:17-cv-07952, southern district of New York, Oct 16, 2017
Coca Cola: This lawsuit is completely meritless
PepsiCo is not commenting on the lawsuit, while Dr Pepper Snapple Group told us that, "Sound scientific studies conducted over many years have shown that beverages made with low calorie sweeteners can help people manage their caloric intake and weight. We stand by our products and believe these lawsuits to be completely without merit."
Coca-Cola - which argued that the complaint was “completely meritless, and we will vigorously defend against it" - added: “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.”
The American Beverage Association is not commenting, meanwhile, as the defendants are responding individually, but has previously argued that “Numerous studies have repeatedly demonstrated the benefits of diet beverages – as well as low-calorie sweeteners, which are in thousands of foods and beverages – in helping to reduce calorie intake.”
Attorney: These cases look like a stretch
Asked whether he thought the case had legs, Bruce Silverglade, principal at law firm Olsson Frank Weeda Terman Matz PC, told FoodNavigator-USA that, “These cases look like a stretch.”
He added: “Such products were on the market when the Nutrition Labeling and Education Act of 1990 was enacted and Congress accepted the use of the term 'Diet' in such contexts as not false or misleading. It is possible that the court will find that plaintiffs are preempted by federal law.”
'If these suits gain traction, finding content-based replacement terms for 'diet' may be a solution for manufacturers'
While the plaintiffs may struggle to prove their case, the lawsuits might deter firms from using the term 'diet' in future, said William Dance, attorney at law firm Tucker Ellis.
"Ultimately, it may be that plaintiffs’ position will be proven correct, and artificial sweeteners will go the way of trans fats, or at least someday FDA may no longer allow products made with artificial sweeteners to be labeled as 'diet' products. We may look back on Diet Coke, Diet Pepsi, and Diet Dr. Pepper as legacies of a simpler time when we wrongly believed that reducing calories by using 'diet' products would result in weight loss, or at least not in type 2 diabetes.
"But it is not clear that the studies plaintiffs rely on prove their position today... As described in the US Right to Know citizen's petition, these studies suggest linkage or association between use of 'diet' sodas and weight gain and related medical problems, but do not establish cause and effect.
"Newer low-calorie drinks like Coke Zero, Pepsi Zero Sugar, and Dr. Pepper 10 escape this legal challenge because they are not [marketed as] 'diet' drinks. Their names simply state content (or lack of content) and leave it to consumers to draw their own conclusions about resulting health impacts. If these suits gain traction, finding content-based replacement terms for 'diet,' terms that cannot be viewed as asserting likely health outcomes, may be a solution for manufacturers."
American Heart Association, American Diabetes Association, Academy of Nutrition and Dietetics
So where do the major public health bodies stand on non-nutritive sweeteners?
In 2012, the American Heart Association and the American Diabetes Association issued a joint statement on the use of artificial sweeteners, saying “that when used judiciously, [artificial sweeteners] could facilitate reductions in added sugars intake.” The statement called for further research on non-nutritive sweeteners and cardiovascular risk but noted that “limiting added sugars is an important strategy for supporting optimal nutrition and healthy weights.”
The Academy of Nutrition and Dietetics, meanwhile, says that, “Consumers can safely enjoy a range of nutritive sweeteners and non-nutritive sweeteners when consumed within an eating plan that is guided by current federal nutrition recommendations."
According to the scientific report of the 2015 Dietary Guidelines Advisory Committee, “When low-calorie sweeteners are used to replace sugar, the resulting reduction in calories can help to achieve short-term weight loss."
But it added: "However, there is insufficient evidence (due to a paucity of data) to recommend the use of low-calorie sweeteners as a strategy for long-term weight loss and weight maintenance.
“Since the long-term effects of low-calorie sweeteners are still uncertain, those sweeteners should not be recommended for use as a primary replacement/substitute for added sugars in foods and beverages.”
Speaking to FoodNavigator-USA from the International Congress of Nutrition in Buenos Aires, Argentina, this week, Dr Susana Socolovsky, senior lecturer and researcher at the University of Buenos Aires, said a systematic review of animal and human studies published in the International Journal of Obesity in 2016 (click HERE) by Rogers et al had concluded that, "Overall, the balance of evidence indicates that use of low energy sweeteners in place of sugar, in children and adults, leads to reduced energy intake and body weight."
In the paper, the authors also noted that, "Commentaries on low energy sweeteners and energy balance frequently suggest that further research is needed, but stop short of proposing any specific new hypothesis to test or new study designs. Although no single study by itself is conclusive, the correspondence of results from the studies reviewed here gives no reason to expect another similar study would yield remarkably different results.
"Continued selective citation and extrapolation from observational and animal studies on this topic is also likely to be of limited value."
*The cases are: Geffner et al v. The Coca-Cola Company, 1:17-cv-07952; Manuel et al v. Pepsi-Cola Company 1:17-cv-07955; and Excevarria et al v. Dr. Pepper Snapple Group Inc. et al 1:17-cv-07957
** See information box below:
The plaintiffs cite multiple studies in their complaint vs Coca-Cola [the complaints vs PepsiCo and Dr Pepper Snapple Group are near-identical and cite the same data], including a 2010 review by Brown et al indicating that “data from large, epidemiologic studies support the existence of an association between artificially-sweetened beverage consumption and weight gain in children.”
They also cite claims from Purdue University researcher Susan Swithers arguing that “frequent consumption of high-intensity sweeteners may have the counterintuitive effect of inducing metabolic derangements” and a 2008 study by Fowler et al alleging that “artificial sweetener use might be fueling--rather than fighting--our escalating obesity epidemic,” and noting that people who consumed the highest intakes of diet soda were more likely to be overweight or obese. (Critics of the research say that this simply shows a correlation - that people with a weight problem are more likely to reach for zero calorie beverages - not that the beverages cause their weight problems.)
The complaints also cite a 2014 study by Huez et al indicating that artificial sweeteners may induce glucose intolerance by altering the gut microbiota and a 2017 study by Huang et al arguing that artificial sweetener use has increased the risk of type two diabetes.
Industry-funded non-profit the Calorie Control Council, however, has been circulating a series of academic studies that counterbalance the research above, including a 2014 meta-analysis suggesting that “substituting low calorie sweetener options for their regular-calorie versions results in a modest weight loss and may be a useful dietary tool to improve compliance with weight loss or weight maintenance plans.”
The International Sweeteners Association, meanwhile, noted in July that "there is not a single published randomised controlled trial, the gold standard in nutrition research, that has shown that low calorie sweeteners use can lead to weight gain or any negative health effect."