“Diet” Soda Fraud? US Right To Know Claims Coke and Pepsi Are Lying about their Diet Soda Products

April 20, 2015

By Riëtte van Laack

On April 9, 2015, US Right to Know (USRTK, Petitioner) filed a Citizen Petition (CP) with FDA and sent a letter to the Federal Trade Commission (FTC) requesting action against what USRTK claims is false and misleading use of the term “diet” on beverages that contain non-nutritional artificial sweeteners (NNAS).  

Petitioner takes issue with the labeling of sodas sweetened with NNAS as “diet.”  Although the FDC Act section 403(r)(2)(D) and FDA’s regulations allow such labeling, the use of the term diet is only permitted if the labeling is not false and misleading.

Citing certain dictionaries, Petitioner asserts that the term “diet” in the brand name of Diet Coke and Diet Pepsi constitutes a deceptive (and possibly fraudulent) claim that drinking these soft drinks will promote weight loss.  Without data to support its allegation, USRTK claims that reasonable consumers buy diet sodas, labeled as diet, not because they do contain zero calories or no sugar, but because they believe that the mere consumption of these products, without energy restriction, exercise, or other actions, will result in weight loss or reduced weight gain.

Yet, according to USRTK, these diet sodas do not contribute to weight loss.  USRTK claims that certain scientific reviews and epidemiological studies suggest (USRTK does not claim certainty) that consumption of sodas containing NNAS is linked to weight gain.  It claims that evidence to the contrary should not be trusted because the underlying studies were funded by industry.  USRTK alleges that Coco-Cola Co. and PepsiCo Inc. are aware of these studies but continue to (fraudulently) use the term diet.

Petitioners request that FDA issue warning letters or take other enforcement action against Coca-Cola Company and Pepsi Co. because their diet sodas products are misbranded even though they fully comply with the regulation, 21 C.F.R. § 105.66.  Petitioners also request that FDA conduct a “sweeping” investigation of products containing NNAS to determine whether those products are misbranded because they use the term “diet.”

As mentioned above, USRTK also sent a letter to FTC requesting that FTC investigate and prohibit the apparently deceptive use of the term “diet” by Coke and Pepsi and conduct the sweeping investigation mentioned in the CP to FDA.