Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Linking Nutritional Products to Lance Armstrong’s Victories Alleged to Be False Advertising, (Mar 5, 2013)

By John W. Arden, J.D., LLM.

Lance Armstrong and FRS Company engaged in false advertising in violation of California false advertising law and unfair competition law by attributing Armstrong’s Tour de France victories to his use of FRS energy and health supplements, according to a class action complaint filed in the federal district court in Los Angeles (Martin v. FRS Co., February 28, 2013).

The “patent falsity” of the advertising claims was revealed when Armstrong admitted that he used performance-enhancing drugs and human growth hormones throughout his athletic career, the plaintiffs asserted.

FRS manufactures, advertises, markets, and sells energy sports drinks, concentrates, chews, and powders throughout the United States from its headquarters in Torrance, California, the lawsuit alleged. From 2007 to October 2012, bicycle racing champion Armstrong endorsed FRS products, acted as a company spokesperson, and served as corporate officer and director of FRS, according to the complaint.

When Armstrong was at the height of his athletic fame, FRS based its entire advertising and marketing campaign on one concept—“Armstrong’s accomplishments and abilities, which Defendants advertised as being linked with Defendant Armstrong’s use of FRS products,” it was claimed. During a multi-year campaign, defendants were alleged to have claimed that the “most important” reason to choose FRS products was because (1) Armstrong was the only person to have won seven Tour de France world titles; (2) Armstrong relied on FRS products to obtain his extra-ordinary strength, speed, energy, and endurance; and (3) FRS products were Armstrong’s “secret weapon” that “fuels him” to victory and “gives him an edge.” These claims were made in television commercials, in print ads, and on the FRS website.

But for these false and misleading advertising claims, plaintiff Robert Martin and consumers across the country would not have purchased FRS products or would, at a minimum, have paid less for the products, the lawsuit charged. The plaintiffs’ reliance on the advertising claims was reasonable and caused them injury in fact and loss of money, according to the complaint.

The false claims constituted violations of the California False Advertising Law (Cal. Bus. & Prof. Code §17500, et seq.) and the California Unfair Competition Law (Cal. Bus. & Prof. Code §17200, et seq.) and breaches of the express warranty, the plaintiffs maintained. They requested an order allowing a class action, a permanent injunction barring further illegal advertising, the disgorgement of profits obtained through the use of illegal practices; restitution to class members; actual and punitive damages; an award of attorney fees and costs of suit; and an award of interest.

The case is No. CV13-01456-ABC (MANx).

Attorneys: Jonathan D. Miller and Holly C. Blackwell (Nye, Peabody, Stirling, Hale & Miller, LLP) and Benjamin J. Sweet (Del Sole Cavanaugh Stroyd, LLC) for Robert Martin and others similarly situated.

Companies: FRS Co.

News: Advertising