Stay ADvised: 2025, Issue 12
In This Issue:
- Plaintiff Scraps False Ad Suit Claiming Joe Rogan's "Alpha Brain" Deceives Consumers
- Cheers to the Reasonable Consumer: Ninth Circuit Affirms Pabst "Olympia" Beer False Ad Summary Judgment Win
- VKTRY Insole Claims Lose Out at NAD, Fail To Reach High Substantiation Bar
Plaintiff Scraps False Ad Suit Claiming Joe Rogan's "Alpha Brain" Deceives Consumers
So long, Alpha Brain false advertising lawsuit—we hardly knew ye. And now that the parties in the lawsuit alleging that controversial podcaster Joe Rogan falsely advertises his company's Alpha Brain supplements have stipulated to dismiss the matter with prejudice, we may never know ye.
It all began when the plaintiff filed the proposed class action lawsuit about a year ago in New York federal court, accusing Rogan's Onnit Labs (now owned by Unilever) of falsely marketing the Alpha Brain supplements and misleading consumers by claiming that its own study supports these representations. According to the complaint, Onnit made false, misleading, and deceptive marketing claims when it promoted the Alpha Brain supplement as having all kinds of positive effects on brain function.
Rogan allegedly sang the supplement's praises on his popular podcast, leveraging his audience of millions to market what he touted as a product that improves focus, mental speed, and memory. Critically, he cited the company's own clinical study to his audience in support of these claims and to market the product.
Plaintiff alleged that Onnit's claims about the study were deceptive and that the results of the 2016 study contradicted the claims Rogan made about the product and its efficacy. The study in fact showed that the supplement performed as well as a placebo and "no statistically significant improvement" in the advertised areas, plaintiff alleged. Although the study abstract noted that Alpha Brain "significantly improved on tasks of delayed verbal recall and executive functioning," the full text of the study showed improvement in only one aspect of memory and no improvement in other areas, according to the complaint.
Citing the massive market for health supplements, plaintiff likened Alpha Brain to Prevagen and Neuriva, which he characterized as competitors in the brain supplement industry vying "for the brain-health hucksterism crown." Both Prevagen and Neuriva had advertised claims about the ability of their brain supplements to support brain function, and both settled false advertising lawsuits for significant multimillion-dollar settlements.
The complaint claimed that Onnit was violating New York's General Business Law, which prohibits false and deceptive advertising.
Although the plaintiff's case is dismissed with prejudice, other class claims were dismissed without prejudice, meaning that other members of the potential class may bring future suits against Onnit. The dismissal filing offers no reason for the parties' agreement to dismiss the matter.
Key Takeaways
Cognitive health claims have been a frequent target for all kinds of enforcement (FTC, NAD, consumer class actions) for the last several years. Setting aside whether Onnit Labs' study was competent and reliable, companies seeking to market around brain health and cognition will want to pay close attention to the "fit" between their studies and their claims. Further, for best practices relative to study design and how to determine whether a particular study is sufficient, the FTC's Health Products Compliance Guide
is a good place to start. While not law (and some would even say parts of it contradict litigated cases), it provides insights into study design standards. It's also worth noting that the NAD has referred to it directly in cases involving dietary supplements and ingredient testing.
Cheers to the Reasonable Consumer: Ninth Circuit Affirms Pabst "Olympia" Beer False Ad Summary Judgment Win
The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court's grant of summary judgment for Pabst Brewing Company, concluding the plaintiff alleging Pabst falsely advertised its beer as made with "Olympia" water failed to show that the reasonable consumer would be misled by the claims.
The case concerned a now-discontinued Pabst beer called "Olympia," marketed as containing "artesian" water specially sourced from that area of Washington state. In the class action complaint, plaintiff alleged that Pabst marketed the beer as made with this water and included the slogan "It's the Water" on the can long after it no longer used that water to make that beer or even brewed the beer in the region.
As plaintiff put it, this was false advertising. The complaint claimed that Pabst's advertising misled consumers by giving them the impression that the beer was "exclusively brewed" with artesian water from that region, in violation of California's Unfair Competition Law (UCL).
On appeal, the panel agreed with the lower court, which had held that the plaintiff failed to provide sufficient evidence to make its case, while Pabst presented evidence showing that a reasonable consumer would not be misled by the claims.
In California, the governing reasonable consumer standard required that there be a "probability 'that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.'" It was not enough to show a mere possibility that a few isolated consumers would be deceived, said the court.
Here plaintiff had failed to live up to this standard, offering "virtually no evidence or specific facts" to support his allegations, other than his personal assumptions and deposition testimony which did not compel the appellate court. Conversely, Pabst met its burden with an "unrebutted expert opinion" that there was no "meaningful evidence" that consumers would be misled by the Olympia Beer label.
At the end of its rather succinct opinion, the Ninth Circuit panel put it this way: "[Plaintiff] lacks the fundamental evidentiary ingredients to brew a successful escape from summary judgment."
Key Takeaways
While the "reasonable consumer" seems to be a moving target depending on which court is deciding, this is yet another example of the Ninth Circuit acting reasonably in finding that it was not enough that a few isolated consumers could be misled. It's also an example of the value of expert opinion which, while not described by the Court, established that there was "no meaningful evidence" that the relevant consumer population was misled by the elements of the Olympia Beer label at issue. Consumer surveys and experts can be a powerful tool for companies seeking to rebut false advertising allegation
VKTRY Insole Claims Lose Out at NAD, Fail To Reach High Substantiation Bar
"Jump Higher, Run Faster."
VKTRY Performance Insoles made this claim and others about its product, including that the insoles are "Backed by 15 years of research and development," that they provide instant results, and that the American Podiatric Medical Association recommends them. The company modified some claims, and the National Advertising Division (NAD) weighed in on the rest and ultimately concluded that most claims should be discontinued.
NAD reviewed the claims as part of its routine monitoring program, answering the question: What is required to substantiate marketing about the performance powers of insoles, when the advertiser makes health and broad comparative performance claims?
VKTRY sells carbon fiber insoles that are marketed to athletes to help improve performance and reduce injuries. But could the company advertise that they help you "Jump Higher, Run Faster"? Not on these facts, said NAD. Performance claims must be supported by reliable and consumer-relevant evidence, but the studies VKTRY submitted in support of this claim did not measure jump height or running speed.
Further, the claim appeared in contexts in which it conveyed a comparative superiority message to all competing insoles. To be permissible, these unqualified comparative claims about "unnamed competitors" must be supported against approximately 85% of the marketplace. VKTRY did not offer any evidence supporting its claim that met that threshold.
Next NAD examined whether the claim that the insole "Enhances support & stability to reduce the risk of injury" was supported. Right off the bat, NAD noted that this is a health claim, which requires reliable support from randomized, controlled human clinical trials. The four studies VKTRY offered in support did not rise to the substantiation level required of health claims.
For example, a randomized controlled study of 15 active males using the VKTRY insoles was not statistically significant, and even its authors noted that it offered only "preliminary insights" into the potential benefits of the insoles. Another study provided no evidence of its methodology, such as how it tracked the injuries measured. Other studies did not report actual results or had a small sample size. In short, the studies were deficient and did not suffice to substantiate the claims made by VKTRY.
VKTRY also advertised a claim touting impressive numbers on the average increase in performance on vertical jumps and sprints and the decreased risk of injury that "our athletes see," but the studies presented to substantiate these claims were also flawed in one way or another.
NAD asked VKTRY to discontinue several testimonials featured on social media that touted the product's performance, such as one that claimed, "When I first put VKTRY Insoles into my cleats, it was an instant boost of explosion, power & speed," and one calling the insoles a "high-tech product." Advertisers cannot rely on consumer statements to support their claims, and the studies presented in support—the same ones NAD said were flawed—did not support these performance and pain relief claims.
One claim fared better, however. The company provided a reasonable basis for the claim it is "Accepted by American Podiatric Medical Association," implying that the organization recommends the VKTRY insoles. This claim appears as a seal on the company's website, not a claim about specific product benefits. VKTRY also provided a letter from the organization stating that the company was authorized to use this seal. That was enough to substantiate it.
Key Takeaways
Advertisers should know by now that the high bar to substantiate health claims requires studies with clearly defined objectives, a sound methodology, and a study population representative of the target population. Likewise, when comparative superiority claims are made against unnamed competitors, this requires a high standard of support of about 85% of the marketplace. Given this high number, advertisers should consider whether it makes sense to make narrower claims that can be more easily supported.