Case 3:17-cv-05916-WHA Document 1 Filed 10/16/17 Page 1 of 18
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`THE LAW OFFICE OF JACK FITZGERALD, PC
`JACK FITZGERALD (SBN 257370)
`jack@jackfitzgeraldlaw.com
`TREVOR M. FLYNN (SBN 253362)
`trevor@jackfitzgeraldlaw.com
`MELANIE PERSINGER (SBN 275423)
`melanie@jackfitzgeraldlaw.com
`Hillcrest Professional Building
`3636 Fourth Avenue, Suite 202
`San Diego, California 92103
`Phone: (619) 692-3840
`Fax: (619) 362-9555
`SACKS WESTON DIAMOND, LLC
`ANDREW SACKS (phv to be filed)
`asacks@sackslaw.com
`JOHN WESTON (phv to be filed)
`jweston@sackslaw.com
`1845 Walnut Street, Suite 1600
`Philadelphia, Pennsylvania 19103
`Phone: (215) 764-3008
`Counsel for Plaintiff and the Proposed Class
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`Plaintiff,
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`SHANA BECERRA, on behalf of herself,
`all others similarly situated, and the general
`public,
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`
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`
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`THE COCA-COLA COMPANY,
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`
`
`v.
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`Defendant.
`
`Case No.: 17-cv-5916
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`CLASS ACTION
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`COMPLAINT FOR VIOLATIONS OF
`CALIFORNIA’S FALSE ADVERITSING
`LAW, CONSUMERS LEGAL
`REMEDIES ACT, & UNFAIR
`COMPETITION LAW; AND BREACH
`OF EXPRESS & IMPLIED
`WARRANTIES
`
`DEMAND FOR JURY TRIAL
`
`
`Becerra v. The Coca-Cola Company, No. 17-cv-5916
`COMPLAINT
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`Plaintiff Shana Becerra, on behalf of herself, all others similarly situated, and the
`general public, by and through her undersigned counsel, hereby brings this action against
`The Coca-Cola Company (“Coca-Cola”), and alleges the following upon her own
`knowledge, or where she lacks personal knowledge, upon information and belief including
`the investigation of her counsel.
`
`INTRODUCTION
`Coca-Cola’s ubiquitous beverage, Diet Coke, is sweetened with aspartame, a
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`non-caloric sweetener, rather than sugar. Because of the product’s use of the term “diet,”
`and its lack of calories, consumers reasonably believe that drinking Diet Coke will assist in
`weight loss or management.
`Scientific evidence demonstrates this is wrong because nonnutritive sweeteners
`2.
`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.
`Accordingly, Coca-Cola’s marketing Diet Coke as “diet” is false, misleading,
`3.
`and unlawful.
`Plaintiff brings this action on behalf of herself, other Diet Coke consumers,
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`and the general public, to enjoin Coca-Cola from continuing to misleadingly advertise Diet
`Coke, and to recover restitution and damages for the class.
`INTRADISTRICT ASSIGNMENT
`Pursuant to N.D. Cal. Civ. L.R. 3-2(c), (d) & 3-5(b), this action is properly
`5.
`assigned to the San Francisco Division because the action arises in Sonoma County in that a
`substantial part of the events or omissions which give rise to plaintiff’s claims occurred in
`Sonoma County.
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`THE PARTIES
`Plaintiff Shana Becerra is a resident of Santa Rosa, California.
`6.
`The Coca-Cola Company is a Delaware corporation with its principal place of
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`business at One Coca-Cola Plaza, Atlanta, Georgia 30313.
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`Becerra v. The Coca-Cola Company, No. 17-cv-5916
`COMPLAINT
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`Case 3:17-cv-05916-WHA Document 1 Filed 10/16/17 Page 3 of 18
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`JURISDICTION AND VENUE
`This Court has jurisdiction over this action pursuant to 28 U.S.C. §
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`1332(d)(2)(A), the Class Action Fairness Act, because the matter in controversy exceeds the
`sum or value of $5,000,000 exclusive of interest and costs, at least one member of the class
`of plaintiffs is a citizen of a State different from Coca-Cola. In addition, more than two-
`thirds of the members of the class reside in states other than the state in which Defendant is
`a citizen and in which this case is filed, and therefore any exceptions to jurisdiction under
`28 U.S.C. § 1332(d) do not apply.
`The Court has personal jurisdiction over Coca-Cola pursuant to Cal. Code Civ.
`9.
`P. § 410.10, as a result of Coca-Cola’s substantial, continuous and systematic contacts with
`the State, and because Coca-Cola has purposely availed itself of the benefits and privileges
`of conducting business activities within the State.
`10. Venue is proper in this Northern District of California pursuant to 28 U.S.C. §
`1391(b) and (c), because Coca-Cola resides (i.e., is subject to personal jurisdiction) in this
`district, and a substantial part of the events or omissions giving rise to the claims occurred
`in this district.
`
`FACTS
`A. Diet Coke is Marketed to Assist in Weight Loss and Healthy Weight
`Management Due to Its Non-Caloric Artificial Sweetener, Aspartame
`11. Coca-Cola uses the term “diet” in Diet Coke, on both its label and in
`advertising.
`12. Dictionary definitions of the term “diet” commonly refer to weight loss.
`13. Coca-Cola uses the term “diet” to market Diet Coke because the product is
`sweetened with a non-caloric artificial sweetener, aspartame, rather than sugar. Because a
`representation that a product is “diet” inherently and necessarily implies it will assist in
`weight loss, Coca-Cola’s implicit promise is that, because Diet Coke does not contain
`calories, it will assist in weight loss, or at least health weight management, i.e., will not
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`Becerra v. The Coca-Cola Company, No. 17-cv-5916
`COMPLAINT
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`cause weight gain (in the same way that drinking water could not possibly result in weight
`gain).
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`14. Due to the prominent use of the term “diet” in the product’s name, Diet Coke,
`consumers reasonably believe that the product will assist in weight loss, or at least healthy
`weight management, for example, by not causing weight gain.
`B. Aspartame Causes Weight Gain
`15. Artificial, nonnutritive sweeteners were first introduced in the early 20th
`century, and thus humans have been consuming them for only about a century. They are
`typically 300 - 13,000 times sweeter than sugar.
`16. Although aspartame does not contain calories, scientific research demonstrates
`that it, like other nonnutritive sweeteners, is likely to cause weight gain.
`17. A 2009 review article found that the “addition of [nonnutritive sweeteners] to
`diet poses no benefit for weight loss or reduced weight gain without energy restriction,” and
`noted “long-standing and recent concerns that inclusion of [nonnutritive sweeteners] in the
`diet promotes energy intake and contributes to obesity.”1
`18. Another review article, in 2010, found that “[d]ata from large, epidemiologic
`studies support the existence of an association between artificially-sweetened beverage
`consumption and weight gain in children.”2
`19. Another review article from 2010 said “research studies suggest that artificial
`sweeteners may contribute to weight gain.”3
`
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`1 Mattes RD, et al., “Nonnutritive Sweetener Consumption in Humans: Effects on Appetite
`and Food Intake and Their Putative Mechanisms.” Am. J. Clin. Nutr., Vol. 89, No. 1, pp. 1-
`14 (Jan. 2009).
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`2 Brown RJ, et al., “Artificial Sweeteners: a Systematic Review of Metabolic Effects in
`Youth.” Int’l J. of Ped. Obesity, Vol. 5, No. 4, pp. 305-12 (Aug. 2010).
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`3 Yang, Q., “Gain Weight by ‘Going Diet?’ Artificial Sweeteners and the Neurobiology of
`Sugar Cravings.” Yale J. of Bio. & Med., Vol. 83, No. 2, pp. 101-108 (June 2010)
`[hereinafter “Yang”].
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`20. A 2013 review article by a federally-funded Purdue University researcher,
`Susan E. Swithers, assessed differences between diet soda consumers and non-consumers
`among over 450,000 participants across 14 independent prospective cohort studies, with an
`average 16-year follow-up. Swithers found that “accumulating evidence suggests that
`frequent consumers of these sugar substitutes may also be at increased risk of excessive
`weight gain, metabolic syndrome, type 2 diabetes, and cardiovascular disease,” and that
`“frequent consumption of high-intensity sweeteners may have the counterintuitive effect of
`inducing metabolic derangements.” She further stated that “[r]ecent data from humans and
`rodent models have provided little support for [artificially sweetened beverages] in
`promoting weight loss or preventing negative health outcomes such as [type 2 diabetes],
`metabolic syndrome, and cardiovascular events. Instead, a number of studies suggest people
`who regularly consume [artificially sweetened beverages] are at increased risk comparted to
`those that do not consume [artificially sweetened beverages],” and “with the magnitude of
`the increased risks similar to those associated with [sugar-sweetened beverages].”4
`21. A 2014 study found that “consumption of commonly used [non-caloric
`artificial sweetener] formulations drives the development of glucose intolerance through
`induction of compositional and functional alterations to the intestinal microbiota,” and
`because of this “link [between] [non-caloric artificial sweetener] consumption, symbiosis
`and metabolic abnormalities,” found that artificial sweeteners “may have directly
`contributed to enhancing the exact epidemic that they themselves were intended to fight.”5
`In 2015, researchers reported “a striking dose-response relationship,” wherein
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`“increasing [diet soda intake] was associated with escalating abdominal obesity, a pathway
`for cardiometabolic risk,” and noted that “[h]igh incidences of overweight and obesity,
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`4 Swithers, SE, “Artificial Sweeteners Produce the Counterintuitive Effect of Inducing
`Metabolic Derangements.” Trends in Endocrinology & Metab., Vol. 24, No. 9, pp. 431-41
`(Sept. 2013).
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`5 Suez J, et al., “Artificial Sweeteners Induce Glucose Intolerance by Altering the Gut
`Microbiota.” Nature, pp.181-86 (Oct. 2014).
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`hypertension, metabolic syndrome, diabetes mellitus, kidney dysfunction, heart attack, and
`hemorrhagic stroke have all recently been associated with frequent [nonnutritive sweetener
`intake] and [diet soda intake].”6
`23. Epidemiological studies also implicate artificial sweeteners in causing weight
`gain. For example, the San Antonio Heart Study “observed a class, positive dose-response
`relationship between [artificially sweetened] beverage consumption and long-term weight
`gain,” and found that consuming more than 21 artificially sweetened beverages per week,
`compared to those who consumed none, “was associated with almost-doubled risk” of
`overweight or obesity.7
`24. A study of beverage consumption among children and adolescents aged 6-19
`found that “BMI is positively associated with consumption of diet carbonated beverages.”8
`25. A two-year study of 164 children found that “[i]ncreases in diet soda
`consumption were significantly greater for overweight and subjects who gained weight as
`compared to normal weight subjects.”9
`26. A July 2017 study found that artificial sweeteners did not lead to any
`significant weight loss in more than 1,000 participants in seven clinical trials. At the same
`time, combined data from 30 observational studies involving more than 400,000
`
`6 Fowler, S, et al., “Diet Soda Intake is Associated with Long-Term Increases in Waist
`Circumference in a Biethnic Cohort of Older Adults: The San Antonio Longitudinal Study
`of Aging.” J. of the Am. Geriatrics Society (March 17, 2015).
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`7 Fowler, S, et al., “Fueling the Obesity Epidemic? Artificially Sweetened Beverage Use
`and Long-Term Weight Gain.” Obesity, Vol. 16, No. 8, pp. 1894-900 (Aug. 2008).
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`8 Forshee RA, et al., “Total Beverage Consumption and Beverage Choices Among Children
`and Adolescents.” Int’l J. of Food Sci. & Nutr., Vol. 54, No. 4, pp. 297-307 (July 2003); see
`also Berkey CS, et al., “Sugar-Added Beverage sand Adolescent Weight Change.” Obesity
`Research, Vol. 12, No. 5, pp. 778-88 (May 2004) (in study of more than 10,000 U.S.
`children aged 9-14, finding, for boys, intakes of diet soda “were significantly associated
`with weight gains”).
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`9 Blum, JW, et al., “Beverage Consumption Patterns in Elementary School Aged Children
`Across a Two-Year Period.” J. of Am. Coll. of Nutr., Vol. 24, No. 2, pp. 93-98 (Apr. 2005).
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`participants showed that artificial sweeteners are associated with obesity, high blood
`pressure, type 2 diabetes and heart health problems.10
`27. A study published in August 2017 suggested artificial sweetener use increases
`the risk of type 2 diabetes by 21%, which is about half the increased risk seen with sugar-
`sweetened beverage use, at 43%.11 Another study indicates daily diet soda consumption is
`associated with a 36% increase in risk of metabolic syndrome, and a 67% increase in risk of
`type 2 diabetes compared with non-drinkers.12
`28. Recent research, published in August 2017, suggests the likely mechanism of
`the counterintuitive effect of non-caloric sweeteners contributing to weight gain and other
`chronic, metabolic illness.
`In nature, sweetness signals energy. Generally, the greater the sweetness, the
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`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 as fat.
`30. This recent research came about when Yale University researcher Dana Small
`set out to determine whether the rewarding character of sweet foods was due to the calories
`
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`10 Azad, MB, et al., “Nonnutrive sweeteners and cardiometabolic health: a systematic
`review and meta-analysis of randomized controlled trials and prospective cohort studies.”
`Canadian Medical Association Journal, Vol. 189, No. 28, pp. E929-E939 (July 17, 2017).
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`11 Huang, M, et al., “Artificially sweetened beverages, sugar-sweetened beverages, plain
`water, and incident diabetes mellitus in postmenopausal women: the prospective Women’s
`Health Initiative observational study.” Am. J. Clin. Nutr., Vol. 106, No. 2, pp. 614-22 (Aug.
`2017).
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`12 Nettleton, JA, et al., “Diet soda intake and risk of incident metabolic syndrome and type 2
`diabetes in Multi-Ethnic Study of Artherosclerosis (MESA).” Diabetes Care, Vol. 32, No.
`4, pp. 688-94 (Apr. 2009).
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`Case 3:17-cv-05916-WHA Document 1 Filed 10/16/17 Page 8 of 18
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`those foods contain. Small created five beverages. Each was sweetened with sucralose, an
`artificial sweetener, to taste about as sweet as a drink containing about 75 calories of sugar.
`Small then varied the calories by adding different amounts of a tasteless carbohydrate called
`maltodextrin, so that the five beverages contained 0, 27.5, 75, 112.5, and 150 calories. After
`subjects consumed each drink six times over a period of weeks, Small scanned their brains
`to see how each affected brain reward circuits, expecting that the higher-calorie drinks
`would stimulate a stronger reward response. However, the most “reinforcing” drink was the
`75 calorie one, which stimulated a stronger brain response than both the 0 calorie and 150
`calorie drinks.13
`31. This research led Small to test the body’s metabolic response, which is the
`energy the body expends to process calories. The results repeated themselves, with the
`metabolic response to the high-calorie drink lower than the metabolic response to the
`medium-calorie drink. Thus, the researchers found that when there was a “mismatch”
`between sweetness and calories present, the calories present fail to trigger the body’s
`metabolism. In addition, reward circuits in the brain did not register that calories had been
`consumed.14
`32. This research demonstrates that sweetness plays a role in how the body
`responds to food, inasmuch as it regulates the metabolic signal.
`In sum, calories consumed in a mismatched condition, such as when a person
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`drinks a Diet Coke while eating food, are not efficiently metabolized at the time of
`ingestion, and may therefore be processed later, or stored, which can drive weight gain and
`further interfere with metabolism.
`
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`13 See Veldhuizen, MG, et al., “Integration of Sweet Taste and Metabolism Determines
`Carbohydrate Reward.” Current Biology, Vol. 27, Issue 16, pp. 2476-85 (Aug. 2017).
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`14 See id.
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`COMPLAINT
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`In addition, some research has shown that sweetness—whether from sugar or
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`non-caloric, artificial sources—increases appetite, which can lead to weight gain.15
`Moreover, “[i]nconsistent coupling between sweet taste and caloric content can lead to
`compensatory overeating and positive energy balance.”16
`COCA-COLA’S UNLAWFUL ACTS
`A. Coca-Cola Misleadingly Marketed Diet Coke as Promoting Weight Loss or
`Healthy Weight Management
`35. Because the aspartame in Diet Coke is likely to cause weight gain, rather than
`to help in weight loss or healthy weight management, Coca-Cola’s marketing the product as
`“diet” is false and misleading.
`36. Coca-Cola is, or reasonably should be aware, of the scientific evidence that
`consuming aspartame can cause weight gain. That evidence has been in the published and in
`the public domain, and recounted in major news outlets.
`37. Despite that Coca-Cola is, or reasonably should have been aware that
`promoting Diet Coke as “diet” was false and misleading, Coca-Cola continued to do so
`anyway, because this representation is the major driver of Diet Coke sales.
`38. Moreover, while touting Diet Coke as “diet,” and containing zero calories,
`Coca-Cola deceptively omitted material information, namely that despite its lack of
`calories, the consumption of Diet Coke can lead to weight gain and contribute to metabolic
`disease, diabetes, and cardiovascular disease.
`B. Coca-Cola Violated FDA and California Food Labeling Regulations
`39. The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq.
`(“FDCA”), governs the labeling of foods and beverages. Pursuant to the California Sherman
`Food, Drug, and Cosmetic Law, Cal. Health & Safety Code §§ 109875 et seq. (the
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`15 See Yang, supra n.3 (“Preload experiments generally have found that sweet taste, whether
`delivered by sugar or artificial sweeteners, enhanced human appetite.”).
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`16 Id.
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`“Sherman Law”), California has adopted the FDCA and its implementing regulations as its
`own law, see id. § 110100.
`40. The FDCA prohibits the labeling of food that is “false or misleading in any
`particular,” 21 U.S.C. § 343(a).
`41. FDA regulations provide that companies may use the term “diet” in the brand
`name or label of a soft drink described in section 343(r)(2)(D) only when it is not false or
`misleading. See 21 U.S.C. § 343(r)(2)(D); 21 C.F.R. § 101.13(q)(2).
`42. Coca-Cola’s labeling Diet Coke as “diet” is false and misleading for the
`reasons described herein. Accordingly, Coca-Cola has violated 21 U.S.C. §§ 343(a) and
`343(r)(2)(D), 21 C.F.R. § 101.13(q)(2), and the corresponding sections of California’s
`Sherman Law, see Cal. Health & Safety Code §§ 110660, 100670.
`In labeling Diet Coke, Coca-Cola also “fail[ed] to reveal facts that are material
`43.
`in light of other representations made or suggested by the statement[s], word[s], design[s],
`device[s], or any combination thereof,” in violation of 21 C.F.R. § 1.21(a)(1). Such facts
`include that consuming the aspartame in Diet Coke can lead to weight gain or make it
`difficult to maintain a healthy weight.
`In labeling Diet Coke, Coca-Cola similarly failed to reveal facts that were
`44.
`“[m]aterial with respect to the consequences which may result from use of the article under”
`both “[t]he conditions prescribed in such labeling,” and “such conditions of use as are
`customary or usual,” in violation of § 1.21(a)(2). Namely, Coca-Cola failed to disclose the
`increased risk of weight gain, and of serious chronic disease, likely to result from the usual
`consumption of Diet Coke in the customary manner.
`PLAINTIFF’S PURCHASE, RELIANCE, AND INJURY
`45. Plaintiff Shana Becerra has been a frequent purchaser of Diet Coke for many
`years. For over 13 years, plaintiff has purchased at least dozens of cans of Diet Coke each
`month, usually from the Safeway located at 2785 Yulupa Avenue, in Santa Rosa,
`California.
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`46. Plaintiff has struggled with obesity since childhood. She purchased and
`consumed Diet Coke in large part because she believed, based on Coca-Cola’s advertising
`the product as “Diet,” that it would contribute to healthy weight management, and, due to
`its lack of calories, would not cause her to gain weight.
`47. Plaintiff would not have purchased Diet Coke at the price she paid, and may
`not have purchased it at all, absent Coca-Cola’s false, misleading, and unlawful labeling.
`48. The Diet Coke cost more than a product, represented to be a diet product,
`would cost if the truth were revealed that the product was not a diet product at all.
`If Coca-Cola were enjoined from making the misleading claims, the market
`49.
`demand and price for Diet Coke would drop, as it has been artificially and fraudulently
`inflated due to Coca-Cola’s use of false, misleading, and unlawful labeling.
`50. For these reasons, the Diet Coke was worth less than what plaintiff paid for it.
`Instead of receiving a beverage that would help assist plaintiff in achieving and
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`maintaining a healthy weight, plaintiff received a beverage whose consumption is likely to
`lead to weight gain.
`52. Plaintiff lost money as a result of Coca-Cola’s deceptive claims and unfair
`practices in that she did not receive what she paid for when purchasing the Diet Coke.
`53. Plaintiff detrimentally altered her position and suffered damages in an amount
`equal to what she paid for the product.
`54. Plaintiff might purchase Diet Coke in the future, for example as a treat, if the
`product were properly labeled.
`CLASS ACTION ALLEGATIONS
`55. Pursuant to Fed. R. Civ. P. 23, plaintiff seeks to represent a class comprised of
`all persons in California who, on or after October 16, 2013 purchased, for personal or
`household use, and not for resale, Diet Coke in cans or bottles.
`56. Plaintiff nevertheless reserves the right to divide into subclasses, expand,
`narrow, or otherwise modify the class definition prior to (or as part of) filing a motion for
`class certification.
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`57. The members in the proposed class and subclass are so numerous that
`individual joinder of all members is impracticable, and the disposition of the claims of all
`class members in a single action will provide substantial benefits to the parties and Court.
`Fed. R. Civ. P. 23(a)(1).
`58. There are questions of law and fact common to the class, Fed. R. Civ. P.
`23(a)(2), which plaintiff may seek to litigate on an individual basis pursuant to Fed. R. Civ.
`P. 23(c)(4), including without limitation:
`a. Whether Diet Coke sold during the class period was likely to result in
`weight gain, or increased risk of metabolic disease, diabetes, and cardiovascular
`disease;
`b. Whether advertising Diet Coke as “diet” would be likely to deceive a
`reasonable consumer;
`c. Whether Diet Coke sold during the class period was misbranded because
`it was in violation of any FDA or California state food labeling statute or regulation;
`d. Whether Coca-Cola expressly or impliedly warranted that Diet Coke
`was “diet”;
`e. Whether Coca-Cola impliedly warranted that Diet Coke would assist in
`weight loss or healthy weight management;
`f. Whether Coca-Cola breached any express or implied warranties;
`The proper injunctive or prospective relief; and
`g.
`h.
`The proper amount of reasonable litigation expenses and attorneys’ fees.
`59. Plaintiff’s claims are typical of class members’ claims in that they are based on
`the same underlying facts, events, and circumstances relating to Coca-Cola’s conduct.
`60. Plaintiff will fairly and adequately represent and protect the interests of the
`class, has no interests incompatible with the interests of the class, and has retained counsel
`competent and experienced in class action litigation, including within the food and beverage
`industry.
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`COMPLAINT
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`61. Class treatment is superior to other options for resolution of the controversy
`because the relief sought for each class member is small such that, absent representative
`litigation, it would be infeasible for class members to redress the wrongs done to them.
`62. Questions of law and fact common to the class predominate over any questions
`affecting only individual class members.
`63. As a result of the foregoing, class treatment is appropriate under Fed. R. Civ.
`P. 23(a), (b)(2), and (b)(3), and may be appropriate for certification “with respect to
`particular issues” under Rule 23(c)(4).
`CAUSES OF ACTION
`FIRST CAUSE OF ACTION
`VIOLATIONS OF THE CALIFORNIA FALSE ADVERTISING LAW,
`CAL. BUS. & PROF. CODE §§ 17500 ET SEQ.
`64. Plaintiff realleges and incorporates the allegations elsewhere in the Complaint
`as if fully set forth herein.
`65. The FAL prohibits any statement in connection with the sale of goods “which
`is untrue or misleading,” Cal. Bus. & Prof. Code § 17500.
`66. Coca-Cola’s use of the term “diet” in marketing Diet Coke is deceptive in light
`of the strong evidence that aspartame causes weight gain.
`67. Coca-Cola knew, or reasonably should have known, that marketing Diet Coke
`as “diet” was untrue or misleading.
`SECOND CAUSE OF ACTION
`VIOLATIONS OF THE CALIFORNIA CONSUMERS LEGAL REMEDIES ACT,
`CAL. CIV. CODE §§ 1750 ET SEQ.
`68. Plaintiff realleges and incorporates the allegations elsewhere in the Complaint
`as if fully set forth herein.
`69. The CLRA prohibits deceptive practices in connection with the conduct of a
`business that provides goods, property, or services primarily for personal, family, or
`household purposes.
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`70. Coca-Cola’s policies, acts, and practices were designed to, and did, result in
`the purchase and use of the Diet Coke primarily for personal, family, or household
`purposes, and violated and continue to violate the following sections of the CLRA:
`§ 1770(a)(5): representing that goods have characteristics, uses,
`a.
`or benefits which they do not have;
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`b.
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`c.
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`§ 1770(a)(7): representing that goods are of a particular
`standard, quality, or grade if they are of another;
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`§ 1770(a)(9): advertising goods with intent not to sell them as
`advertised; and
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`d.
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`§ 1770(a)(16): representing the subject of a transaction has been
`supplied in accordance with a previous representation when it
`has not.
`71. Plaintiff, on behalf of herself and the class, seeks injunctive relief, restitution,
`and reasonable attorneys’ fees and costs.
`In compliance with Cal. Civ. Code § 1782, plaintiff sent written notice to
`72.
`DPSG of her claims. Although plaintiff does not currently seek damages for her claims
`under the CLRA, if DPSG refuses to remedy the violation within 30 days of receiving the
`notice letter, plaintiff may thereafter amend this Complaint to seek actual and statutory
`damages.
`73.
`herewith.
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`In compliance with Cal. Civ. Code § 1782(d), an affidavit of venue is filed
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`THIRD CAUSE OF ACTION
`VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION LAW,
`CAL. BUS. & PROF. CODE §§ 17200 ET SEQ.
`74. Plaintiff realleges and incorporates the allegations elsewhere in the Complaint
`as if fully set forth herein.
`75. The UCL prohibits any “unlawful, unfair or fraudulent business act or
`practice,” Cal. Bus. & Prof. Code § 17200.
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`COMPLAINT
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`Fraudulent
`76. Coca-Cola’s use of the term “diet” to market Diet Coke is likely to deceive
`reasonable consumers.
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`Unfair
`77. Coca-Cola’s conduct with respect to the labeling, advertising, and sale of Diet
`Coke was and is unfair because Coca-Cola’s conduct was and is immoral, unethical,
`unscrupulous, or substantially injurious to consumers and the utility of its conduct, if any,
`does not outweigh the gravity of the harm to its victims.
`78. Coca-Cola’s conduct with respect to the labeling, advertising, and sale of Diet
`Coke was also unfair because it violated public policy as declared by specific constitutional,
`statutory or regulatory provisions, including the False Advertising Law, the Federal Food,
`Drug, and Cosmetic Act, and the California Sherman Food, Drug, and Cosmetic Law.
`79. Coca-Cola’s conduct with respect to the labeling, advertising, and sale of Diet
`Coke was also unfair because the consumer injury was substantial, not outweighed by
`benefits to consumers or competition, and not one consumers themselves could reasonably
`have avoided.
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`Unlawful
`80. The acts alleged herein are “unlawful” under the UCL in that they violate at
`least the following laws:
`The False Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq.;
`a.
`The Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.;
`b.
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`and
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`The Federal Food, Drug, and Cosmetic Act, 28 U.S.C. §§ 301 et seq.,
`c.
`and its implementing regulations, 21 C.F.R. §§ 101 et seq.; and
`The California Sherman Food, Drug, and Cosmetic Law, Cal. Health &
`d.
`Safety Code §§ 109875, et seq.
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`FOURTH CAUSE OF ACTION
`BREACH OF EXPRESS WARRANTY, CAL. COM. CODE § 2313(1)
`81. Plaintiff realleges and incorporates the allegations elsewhere in the Complaint
`as if fully set forth herein.
`82. Through the label of D