Conclusory Allegations Sink Plaintiff's Second Challenge to Gatorade Fit "Healthy" Claims

A federal judge dismissed with leave to amend a plaintiff's second attempt to allege in a putative class action that Gatorade Fit "healthy" claims are false advertising.

Plaintiff David Gumner alleged that PepsiCo falsely advertises the Gatorade Fit brand by labeling it "Healthy Real Hydration" in violation of Food and Drug Administration (FDA) regulations and California's Unfair Competition Law.

Gumner's prior complaint was dismissed in August after the court determined that though he plausibly alleged that Gatorade Fit "healthy" claims could theoretically state a claim, he failed to allege he relied on these misrepresentations.

His second amended complaint didn't fare any better as the court concluded that plaintiff "has changed essentially nothing," offered only conclusory allegations, and still had not alleged facts to support his allegations that he wouldn't have purchased Gatorade Fit if the drink hadn't been labeled "healthy."

In the prior complaint, the plaintiff alleges that he "was exposed to, read, and relied upon the Misbranded Claims that appeared on the labeling" and "relied on these labeling claims in deciding to purchase Gatorade Fit in that, but for the Misbranded Claims[, he] would not have purchased Gatorade Fit."

The second amended complaint "merely 'shuffles around the same conclusory language' and has 'again failed to give factual detail about the circumstances of his purchase,'" the court said, agreeing with Pepsi.

That conclusory language fell short of the factual details needed to properly show Gumner was injured by the misrepresentations. For example, the court said the complaint should detail facts like whether plaintiff expected a "healthy" product, what he expected a "healthy" product to contain, what he thought the label "Healthy Real Hydration" meant, and the like.

Key Takeaways

In false advertising law, as in fiction, the old axiom to show and not tell still stands true. As the judge exhorted the plaintiff for his final attempt at making the allegations: "Plaintiff must show the Court through facts how he relied on PepsiCo's mislabeling, not just tell the Court he did so … through conclusory statements."

Cross-posted from DWT's Stay ADvised: Brand Protection & Advertising Law News 12/4/2023 Update. Click here to access other Stay ADvised updates.