A California consumer who alleged that he gained weight while using a diet drink has reportedly failed to demonstrate that he has standing to pursue putative class consumer-fraud claims against the manufacturer because he did not keep track of his caloric intake when he used the product. Fletcher v. Celsius Holdings, Inc., No. BC439055 (Cal. Super. Ct., decided August 10, 2011). Granting the manufacturer’s motion for summary judgment, the court apparently determined that, without the caloric intake data, it would be impossible for the plaintiff to prove that the product did not, as advertised, burn up to 100 calories when consumed.

According to a news source, the plaintiff alleged that he used the product while training to become a firefighter from October 2009 to January 2010, and gained 10 pounds. He also alleged that he maintained a healthy diet and a rigorous exercise regimen during this period. The court suggested that the weight gain could also be attributed to extra calories consumed during the holiday season, stating, “I’ve lived through more Thanksgivings than I care to remember. It’s a struggle. It’s easy to gain weight during Thanksgiving, but we all know this.” Still, the court apparently recommended that plaintiff’s counsel appeal the ruling because “[t]his case has some very novel issues, and there are all kinds of unanswered questions here.” See Law360, August 10, 2011.