Health Law Daily Wrap Up, DIETARY SUPPLEMENTS—2d Cir.: Question on athlete's supplement contamination injury certified to New York high court, (Jul 22, 2026)

By Pankhuri Bhatnagar, B.A. LL.B.

The case presented unsettled and dispositive questions as to the nature of an injury sustained by an athlete who was disqualified from world championships following his unintentional ingestion of a banned drug.

In an action brought against a supplement manufacturer by a world class athlete who allegedly ingested contaminated recovery gummies falsely labeled as free from banned substances, the U.S. Court of Appeals for the Second Circuit certified two questions to the New York Court of Appeals concerning the scope of the state's economic loss doctrine. The court questioned whether tort claims may proceed where no viable contract or products liability claim exists and whether the nonconsensual ingestion of a banned substance that disqualifies an athlete from competition constitutes a cognizable injury in tort. The court otherwise affirmed dismissal of the athlete's tortious interference, Texas consumer protection, and intentional infliction of emotional distress claims (Asinga v. The Gatorade Co., No. 25-1378 (2d Cir. July 17, 2026)).

Background. A world-class high school sprinter was selected as Gatorade's National Player of the Year in boys' track and field, and received several Gatorade products as a gift. Among these products was a supplement designed to “support exercise recovery,” known as Gatorade Recovery Gummies. The gummies displayed a National Sanitation Foundation (NSF) "Certified for Sport" logo indicating that they had been independently tested and were free from the 290 substances banned by major athletic organizations. After consulting his coach, the athlete started consuming the gummies following workouts. Shortly thereafter, he tested positive for trace amounts of cardarine, a prohibited performance-enhancing drug, and was suspended from competition.

He claimed that independent testing of the opened bottles of the gummies revealed cardarine contamination, and Gatorade later acknowledged that the relevant production lot had never actually been submitted for NSF certification despite bearing the certification logo. The Athletics Integrity Unit (AIU) asked for a sealed sample to conduct its own testing, but the product had been taken off the market by then and bottles of a different lot from the same batch tested negative for cardarine. The athlete was barred from competing in international competitions including the Paris Olympics and World Athletics Championships, was stripped of his world records, and lost his college scholarship and endorsement opportunities. He brought suit against the manufacturer, but his claims were dismissed because they were barred by New York's economic loss doctrine, he was not a paying “consumer” of the gummies, and he failed to allege emotional distress. The athlete appealed.

Economic loss doctrine. The Second Circuit explained that New York law does not clearly define the economic loss doctrine. In IKB International, S.A. v. Wells Fargo Bank, N.A., 40 N.Y.3d 277 (2023), a New York appellate court clarified that courts often conflate two distinct principles: (1) the economic loss rule, which limits end purchasers to contract remedies for purely economic losses resulting from defective products and (2) the broader principle barring tort claims that are essentially contractual in nature. The difficulty here was that the athlete possessed no viable contract claim because he received the gummies as a gift and his consumer protection claim had been dismissed. It was thus unclear whether New York law bars tort claims as duplicative when no viable contract or products liability remedy exists. Gatorade relied on the economic loss rule that there can be no tort recovery where a product does not function properly, resulting in economic loss other than physical damage to persons or property. La Barre v. Mitchell, 681 N.Y.S.2d 653, 654 (4th Dep’t 1998). Importantly, the tort claims described in terms of negligence rather than products liability did not fall within this rule, meaning that the athlete’s claims for negligent manufacturing and misrepresentation which caused a nonconsensual change in his body chemistry remained potentially viable.

Nature of the injury. The man alleged that the cardarine in his system rendered him ineligible to participate in his sport. This type of injury was difficult to quantify since unlike most traditional toxic-exposure cases, the drug did not physically impair his health or performance. Indeed, he broke a world record three weeks after he began consuming the gummies. Black’s Law Dictionary (12th ed. 2024) defines “bodily injury” as “[p]hysical damage to a person’s body.” While trace amounts of a harmful chemical can be construed as “damage,” district courts dismiss contamination exposure cases where the only adverse effects are on a future possibility. In re Chantix (Varenicline) Mktg., Sales Pracs. & Prods. Liab. Litig. (No. II), 735 F. Supp. 3d 352, 406 (S.D.N.Y. 2024). The athlete alleged immediate and profound career consequences flowing directly from his supplement’s contamination. In Landon v. Kroll Laboratory Specialists, Inc., 22 N.Y.3d 1 (2013), the New York Court of Appeals recognized that a drug-testing laboratory owed a duty of care because false positive test results could have "profound, potentially life-altering consequences for a subject."

Similarly, the athlete alleged that Gatorade falsely represented the gummies as NSF Certified for Sport despite allegedly knowing the relevant lot had never been independently tested. Those allegations arguably implicated New York authorities recognizing duties arising from certifications intended to induce reliance, including Glanzer v. Shepard, 233 N.Y. 236 (1922), and Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536 (1985). By offering the falsely advertised gummies to participating athletes at an invitational event, Gatorade was allegedly “aware” of and “intended” for the athletes to rely on the certification in choosing whether to consume the gummies, and placed itself in the “best position” to prevent contamination. Nevertheless, the Second Circuit concluded that those decisions did not resolve whether the athlete had suffered a legally cognizable injury sufficient to support negligence, strict liability, or negligent misrepresentation claims. The man sought to rely on Horn v. Med. Marijuana, Inc., 383 F. Supp. 3d 114 (W.D.N.Y. 2019), to argue that he suffered an “antecedent personal injury” by unknowingly ingesting a substance which caused him to fail a drug test and suffer further harm. But that case evaluated federal RICO and not New York state law.

Certification. A court may certify questions where it is unable to predict how to answer a dispositive question, after considering (1) existence of authoritative state court decisions; (2) state policy; and (3) whether certification can resolve the appeal. Nitkewicz v. Lincoln Life & Ann. Co. of N.Y., 49 F.4th 721, 729 (2d Cir. 2022). Here, the scope of the economic loss bar under state law was wholly unclear, the injury lacked any useful analog in precedent, and New York had a genuine interest in facilitating rigorous athletic participation and in defining the scope of a business’ liability within its boundaries. Accordingly, this court certified two questions to the New York Court of Appeals: (1) whether any New York doctrine bars tort claims as duplicative of contract or products liability claims when no viable contract or products liability claim exists, and (2) whether the nonconsensual ingestion of a substance affecting an athlete's eligibility to compete constitutes a cognizable injury in tort when consumed in reliance on a false representation that the product had been independently tested and certified as uncontaminated.

The case is No. 25-1378.

Judge: Jacobs, D.

Attorneys: Paul J. Greene (Global Sports Advocates, LLC) for Issamade Asinga. Michael West (Hogan Lovells US LLP) for The Gatorade Co.

Companies: The Gatorade Co.

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