Silver v. BA Sports Nutrition, LLC

Background

BA Sports Nutrition, LLC produces and sells BodyArmor SuperDrink sports drinks. The labels used phrases and images including “SUPERIOR HYDRATION,” fruit images, “natural flavors and sweeteners,” “electrolytes,” “antioxidants,” and vitamins. Marc Silver and Alexander Hill alleged that these labels misled them about the drinks’ health benefits, sugar content, hydration qualities, and fruit content. Silver asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. Hill asserted claims under New York consumer-protection and false-advertising laws. Both asserted unjust-enrichment or quasi-contract claims.

The court had previously dismissed the original complaint with leave to amend, concluding that the “superior hydration” statement was nonactionable puffery—a vague or subjective product-superiority statement that ordinarily cannot support a claim—and that the allegations about healthiness were implausible in light of the labels’ disclosure of sugar. The court later denied BA Sports’ motion to dismiss the amended complaint after considering the allegations as a whole.

Summary-judgment standard

Summary judgment is appropriate when the evidence shows no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment as a matter of law. The court must generally view disputed evidence in favor of the nonmoving party, but unsupported or speculative testimony is insufficient to create a triable dispute.

Plaintiffs’ deposition testimony

BA Sports argued that the plaintiffs’ depositions showed they could not prove reliance and injury. Reliance means that a plaintiff actually relied on the alleged misrepresentation when making the purchase.

The court agreed that the depositions defeated the “superior hydration” theories. Silver testified that hydration was not a consideration when he first bought BodyArmor, and neither plaintiff knew what BodyArmor claimed to be superior to. Both also testified that they did not view hydration as an objectively measurable quality. The court concluded that their testimony showed they were not deceived by a specific, measurable hydration representation and that the “superior hydration” statement was nonactionable puffery.

The court also found that the plaintiffs’ testimony defeated their claims concerning sugar. Both knew BodyArmor contained sugar when they bought it, knew that sugar was unhealthy, and continued drinking the product. Hill testified that he looked at the sugar content, while Silver said he knew the drink contained sugar. The court concluded that this testimony showed they were not misled about the product’s sugar content.

The court separately found that Hill’s testimony defeated any claim that he relied on off-label advertising. He did not recall specific advertisements, testified that he had not relied on several categories of advertising identified in the complaint, and described in-store displays as reminders that the product existed rather than as specific claims on which he relied.

The court reached a different conclusion about the fruit-labeling theories. Both plaintiffs testified that the fruit images attracted them to BodyArmor, that they believed fruit was healthy, and that they thought the drinks’ “natural” fruit flavors came from fruit. The court noted that they had not affirmatively testified that they knew the drinks contained no fruit. Their current decision not to drink fruit juice did not establish that, during the relevant period, they did not believe BodyArmor contained natural fruit flavors or that they did not view that characteristic as positive.

The court stated that the only claims surviving the motion based on the plaintiffs’ depositions were the claims that they were misled by the fruit imagery and believed “natural flavors” referred to flavors from fruit.

Federal flavor-labeling regulation

BA Sports argued that the fruit-related claim based on 21 C.F.R. § 101.22(i)(1)(i) failed because that provision applies when a food is commonly expected to contain the characterizing ingredient, and BA Sports contended that consumers do not commonly expect sports drinks to contain fruit juice.

The court granted summary judgment to BA Sports on this issue. The record contained a declaration from a beverage-industry consultant stating that, before 2019, he was unaware of sports drinks containing or being marketed as containing actual fruit, fruit juice, or fruit-juice concentrate. The plaintiffs criticized the declaration but did not present opposing evidence creating a triable factual dispute. The court also considered the plaintiffs’ testimony that they drank BodyArmor during a period when, according to the record, no sports drinks contained fruit juice.

Preemption

BA Sports argued that all of the fruit-labeling claims were expressly preempted by the Food, Drug, and Cosmetic Act and the Nutrition Labeling and Education Act. Express preemption occurs when federal law bars a state from imposing a different or additional labeling requirement. BA Sports characterized the fruit images and related labeling as nutrient-content claims regulated by federal law.

The court rejected that argument. It held that the plaintiffs were not challenging an express or implied statement about the level of a nutrient. Instead, they claimed that the fruit pictures, drink names such as “orange mango,” and the words “natural flavors” led them to believe the drinks contained fruit. The court therefore found that the fruit labeling did not constitute the type of nutrient-content labeling covered by BA Sports’ preemption argument.

Disposition

Judge Susan Illston granted in part and denied in part BA Sports’ motion for summary judgment. The order granted summary judgment on the plaintiffs’ theories concerning superior hydration, sugar content, and off-label advertising, and on BA Sports’ challenge under 21 C.F.R. § 101.22(i)(1)(i). The order denied summary judgment as to the fruit-labeling theories insofar as they were not barred by the preemption argument. The court directed the parties to cooperate with each other and the Special Master to determine what remaining discovery was relevant after the summary-judgment ruling.