Antitrust Law Daily Wrap Up, ADVERTISING—Fed. Cir.: No reasonable jury could conclude “increase vasodilation” statement was literally false, (Jun 17, 2025)

By Karen Servidea, J.D.

Dismissal of false advertising claim between rival dietary supplement makers was required.

Because a dietary nutritional supplement, in the dosage amount disclosed in its label, increases vasodilation for people under a certain weight, the phrase “increase vasodilation” on the label was not literally false, the U.S. Court of Appeals for the Federal Circuit has determined in a nonprecedential disposition. Accordingly, the court held that the maker of the supplement, the company from which it licensed the underlying technology, and that company’s president were entitled to judgment as a matter of law on claims of false advertising under the Lanham Act and unfair competition under state law brought by a competitor. The appellate court reversed a lower court’s judgment of liability but affirmed the lower court’s award of attorney fees to the complaining product maker’s rival as a sanction for conduct during discovery (BPI Sports, LLC v. Thermolife International LLC, No. 23-1068 (Fed. Cir. Jun. 16, 2025)).

Defendant ThermoLife International LLC owned several patents covering creatine nitrate, an amino-acid nitrate used in dietary supplements. ThermoLife licensed its patented creatine nitrate technology to manufacturers, including co-defendant Muscle Beach Nutrition (MBN). MBN sold a creatine nitrate product called “CRTN-3,” the label for which listed the benefits of “increase[d] vasodilation,” among other benefits. Plaintiff BPI Sports, LLC, produced and sold dietary nutritional supplements and competed with licensees of the patent holder.

The competitor sued the patent holder and its president, CEO, and sole owner, in the U.S. District Court for the Southern District of Florida for false advertising under the Lanham Act and unfair competition under state law in connection with CRTN-3, as well as false patent marking under the Patent Act. CRTN-3’s manufacturer was added as a co-defendant in an amended complaint. Before the manufacturer was added, the patent holder and its president moved to dismiss the suit, arguing that the allegations in the complaint related to the manufacturer and not to them.

Discovery dispute and sanctions order. During discovery, a dispute arose regarding a purported license agreement between the patent holder and the then-non-party manufacturer, which the court determined had been created after the litigation had commenced (and after the discovery request) in an alleged attempt to memorialize a pre-existing “oral/implied” license, with a false effective date of 2017. The district court ordered sanctions, including that the license agreement be excluded from trial, that an adverse instruction be given to the jury, and that the competitor be awarded reasonable fees and costs.

Trial; liability verdict. The case was tried before a jury, which found that the competitor showed false advertising and unfair competition but awarded zero damages. The jury found in favor of the defendants as to the false patent marking claim. The parties filed cross-appeals with the Federal Circuit.

No literal falsity. At the outset, the court noted that the competitor’s false advertising claim under the Lanham Act and its unfair competition claim under state law “rise and fall together in this case.” The case turned on the question of whether the label statement was false or misleading. The court explained that the falsity element is met if the challenged advertisement is literally false, or if it is literally true, but misleading. The court determined that only literal falsity was at issue on appeal because, on the verdict form, the jury concluded that the label of “increase[d] vasodilation” was literally false and did not reach whether the statement was misleading. Additionally, on appeal, the competitor did not argue that, if the court disagreed with the jury’s verdict on literal falsity, it should affirm on the alternative ground that the label was misleading.

The court then determined that no reasonable jury could have concluded that CRTN-3’s statement of “increase vasodilation” was literally false, noting that the competitor’s own evidence showed that the dosage disclosed in the label would cause vasodilation for people weighing 113 pounds or less. The court rejected the competitor’s argument that the statement was literally false because the dosage amount of creatine nitrate needed for an average adult in the U.S. weighing 177 pounds is more than the amount disclosed in CRTN-3. The court explained that the label does not state, for instance, that the product increases vasodilation for the average adult weighing 177 pounds. Accordingly, the court held that the competitor’s Lanham Act claim for false advertising necessarily failed and reversed the lower court’s judgment as to that claim and as to the state-law unfair competition claim.

Sanctions. The court noted that its determination on the foregoing claims mooted the defendants’ challenges to the portions of the sanctions order other than the award of attorney fees. It then rejected the defendants’ argument that Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218 (11th Cir. 2017), requires a district court to determine that bad faith was the only explanation for alleged sanctionable conduct before using its inherent power to sanction. It further rejected the defendants’ argument that the order was based on a clearly erroneous view of the evidence. Accordingly, the court affirmed the sanctions order as to attorney's fees.

The Case is No. 23-1068.

Judge: Reyna, J.

Attorneys: Gregory Hillyer (Hillyer Legal, PLLC) for BPI Sports, LLC. Matthew James Dowd (Dowd Scheffel PLLC) for ThermoLife International LLC.

Companies: BPI Sports, LLC; ThermoLife International LLC

Cases: Advertising FedCirNews