Silver v. BA Sports Nutrition, LLC

Background

This was a proposed consumer class action involving BA Sports Nutrition’s BodyArmor sports drinks. The plaintiffs alleged that BA marketed BodyArmor as providing “Superior Hydration” and, in some advertising, “More Natural Better Hydration.” They also alleged that the marketing suggested the drinks were beneficial because they contained vitamins and nutrients, while the drinks were sugar-sweetened beverages. The complaint alleged that a 16-ounce bottle contained 36 grams of sugar, although the label disclosed the sugar amount and ingredients.

The plaintiffs asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act; New York’s consumer-protection statutes; Pennsylvania’s Unfair Trade Practices and Consumer Protection Law; and an unjust-enrichment or quasi-contract theory. They also alleged that BA violated Food and Drug Administration regulations restricting certain nutrient fortification claims. The plaintiffs sought damages, declaratory relief, injunctive relief, and certification of nationwide and state subclasses.

Motion to Dismiss

BA moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which requires dismissal when a complaint does not allege enough facts to make a legally valid claim plausible. BA argued that “Superior Hydration” and “More Natural Better Hydration” were non-actionable puffery, meaning exaggerated or vague advertising that a reasonable buyer would not treat as a specific factual promise. BA also argued that the labels accurately disclosed the drinks’ ingredients and sugar content, that the cited FDA regulations did not apply, that the unjust-enrichment claim therefore failed, and that the plaintiffs could not seek injunctive relief.

The court applied the reasonable-consumer standard to the allegations concerning superior hydration and the drinks’ alleged healthiness. Under that standard, the plaintiffs had to allege facts showing that a significant portion of reasonable consumers could be misled. The court used a different analysis for the fortification allegations because the cited FDA regulations did not require likely consumer deception as an element of a violation.

Court’s Analysis

The court held that “Superior Hydration” and “More Natural Better Hydration” were non-actionable puffery. The statements were general and vague claims of product superiority, not specific or measurable claims about an absolute product characteristic. The court noted that the plaintiffs did not allege that BodyArmor was not hydrating or identify a method for measuring “superior” or “better” hydration. It therefore found it implausible that a reasonable consumer would view the statements as specific, verifiable claims.

The court also rejected the plaintiffs’ “bait and switch” theory. The plaintiffs argued that consumers were led to believe they were buying a beneficial health drink but instead bought a sugar-sweetened beverage. The court found that this theory depended on unsupported inferences that “Superior Hydration” conveyed an overall health or wellness benefit. It also required consumers to disregard the prominently displayed Nutrition Facts panel and ingredient list, which disclosed the sugar content and identified pure cane sugar as the second ingredient. The court distinguished cases involving explicit “healthy,” “nutritious,” or similar claims, or labels containing false statements about a product’s contents.

As to the fortification allegations, the court found that the plaintiffs had not adequately alleged a violation of the cited FDA regulations. The plaintiffs relied on the terms “Superior Hydration,” “super,” “best,” “premium,” and “100% RDI” to argue that BA had made prohibited relative or health-related nutrient claims. The court was not persuaded that the regulation covering terms such as “more,” “fortified,” “enriched,” “added,” “extra,” and “plus” extended to similar but unlisted words. The court also noted that the plaintiffs conceded that BA was not making health-based implied nutrient-content claims on the label, while it was unclear whether the plaintiffs intended to rely on non-label advertising.

Disposition

The court concluded that the complaint failed to state a claim under any of the statutes or theories alleged. It granted defendant’s motion to dismiss the complaint and granted plaintiffs leave to amend. The order set June 22, 2020, as the deadline to amend. The court noted that an amended complaint might focus on specific non-label advertising, but plaintiffs would need to allege that they saw and relied on those advertisements; the court also expressed skepticism about whether such claims could proceed on a class basis. The court vacated the scheduled hearing and continued the initial case-management conference to September 4, 2020.