Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: “Antioxidant Packed” statements by beverage maker constituted improper nutrient content claims, (Jul 14, 2015)

By Linda O’Brien, J.D., LL.M.

Consumers of a specialty soft drink sufficiently stated claims against the beverage manufacturer for allegedly mislabeling the products as “Antioxidant Packed” and “Antioxidant Packed Beverages.” In partly denying the beverage manufacturer’s motion to dismiss, the federal district court in San Francisco decided that such statements constituted improper nutrient content claims (Vassigh v. Bai Brands LLC, July 13, 2015, Gilliam, H.).

Bai Brands is a manufacturer of specialty, fruit-based, low-calorie soft drinks marketed under the brands Bai5 and Bai Bubbles. Consumers Dorinda Vassigh, Samantha Lewin, Richard Draeger, Tracey Hechler, and Mark Korabelnikov filed suit against Bai, alleging that the antioxidant-related statements on the product labels of Bai5 Antioxidant Infusions beverages contained improper nutrient content claims in violation of the New York General Business Law, Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), and California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA). Bai moved for dismissal.

Preemption. According to the court, the plaintiffs’ UCL claims regarding the statements that Bai5 Antioxidant Infusions beverages are “Antioxidant Packed” and are “Antioxidant Packed Beverages” plausibly implied a particular level of antioxidants contained in the product and therefore constituted nutrient content claims. Such statements characterize the level of antioxidants found in the promoted products in violation of the nutrient content claim requirements of the Food, Drug, and Cosmetics Act (FDCA).

However, the statements “Antioxidant Infusions,” “Antioxidant Goodness Inside,” “Hello Antioxidants!” and “We infuse the antioxidant power of the superfruit, add a splash of exotic fruit juices and voila! You have 100% natural, free-radical crushing, Bai 5,” as well as the thermometer graphic, do not plausibly characterize, either expressly or implicitly, the amount or level of antioxidants contained in the products. The FDCA made a distinction between statements characterizing the level of antioxidants and statements that merely signal the existence of antioxidants. Therefore, Bai’s motion to dismiss was granted as to all claims arising from those statements.

Reasonable consumer standard. Bai contended that the complaint failed to set forth sufficient facts showing the plaintiffs or a reasonable consumer would be deceived by the packaging of Bai5 Antioxidant Infusions beverages. Specifically, the complaint did not identify what each plaintiff believed the product labels meant or how each product failed to deliver on that expectation. In dismissing the claims under the CLRA, FAL, and fraudulent prong of the UCL, the court found that the plaintiffs only made the conclusory allegation that they relied on statements and graphics on the beverage bottles that characterized antioxidants. They failed to describe any particular statement that each plaintiff relied upon, what they believed the statements to mean at time of purchase, and how the beverage failed to live up to the label’s promises in order to state a claim for relief.

The case is No. 14-cv-05127-HSG.

Attorneys: C.K. Lee (Lee Litigation Group, PLLC) for Dorinda Vassigh. Angela Christine Agrusa (Liner LLP) for Bai Brands LLC.

Companies: Bai Brands LLC

Cases: Advertising StateUnfairTradePractices CaliforniaNews