FDA Declines to Stop Coke, Pepsi from Advertising Artificially Sweetened Soda as “Diet”

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News Release

For Immediate Release: Wednesday, November 8, 2017
For More Information Contact: Gary Ruskin (415) 944-7350

The U.S. Food and Drug Administration has denied a petition asking it to stop Coca-Cola Co. and PepsiCo Inc. from using the term “diet” in advertising, branding and labeling of Diet Coke and Diet Pepsi, because it may be deceptive, false and misleading.  The petition was filed by U.S. Right to Know, a consumer watchdog group, in April 2015.

Numerous scientific studies and literature reviews suggest that artificial sweeteners do not assist in weight loss and may cause weight gain. Federal law prohibits false advertising, branding and labeling of food products, and FDA regulations permit the use of the term “diet” for soft drink brands or labels only when it is not false or misleading.

“The advertising of artificially sweetened soda as ‘diet’ may well be one of the greatest consumer frauds in modern times,” said Gary Ruskin, co-director of U.S. Right to Know. “It is a shame that the FDA is siding with the soda industry against consumers.”

The FDA letter to U.S. Right to Know states that the petition was denied because “Requests for FDA to initiate enforcement action and related regulatory activity are outside the scope of our citizen petition regulations…” But the citizen petition regulations do not explicitly prohibit petitions for enforcement actions not involving a US attorney, such as the FDA warning letters that USRTK requested.

“This is a strained and legally questionable interpretation of their regulation to avoid taking steps to protect public health,” Ruskin said. “In general, the Trump administration has been hostile to consumers and consumer protection,” Ruskin said.

In September 2015, FDA wrote USRTK that it had “not been able to reach a decision” on the USRTK petition “because of other agency priorities and the limited availability of resources.”

The Federal Trade Commission declined to act on a similar petition filed by USRTK, citing competing priorities and resource allocation.

In October, consumers filed six class action lawsuits against Coca-Cola Co., PepsiCo Inc. and Dr. Pepper Snapple Group Inc., alleging that their marketing of “diet” soda is “false, misleading and unlawful.”

For background on the links between aspartame and weight gain, see the USRTK fact sheet “Aspartame Tied to Weight Gain, Increased Appetite, Obesity.” For background on the health effects of aspartame, see the USRTK fact sheet “Aspartame: Decades of Science Point to Serious Health Risks.”

The USRTK petition to FDA is available at: https://www.usrtk.org/wp-content/uploads/2015/04/FDA-artificial-sweetener-petition.pdf

FDA’s response is available at: https://usrtk.org/wp-content/uploads/2017/11/FDA-denial-of-URTK-diet-petition.pdf

U.S. Right to Know is a nonprofit organization that investigates the risks associated with the corporate food system, and the food industry’s practices and influence on public policy.  For more information, see usrtk.org.

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