Prime Hydration markets energy drinks as having "200 mg" of caffeine. According to the allegations in a class action lawsuit, however, the drinks actually have more caffeine than that – somewhere between 215 and 225 mg. While I can imagine consumers being upset if the company provided significantly less caffeine than advertised, is it false advertising to provide consumers more than what was promised? Here's what a federal court in New York had to say about that.
The plaintiffs sued Prime Hydration, alleging (among other things) that understating the amount of the caffeine in its energy drinks constituted false advertising under New York law. In order to properly plead a claim for false advertising, the plaintiffs needed to allege that the defendant engaged in consumer-oriented conduct, that the conduct was materially misleading, and that the plaintiffs suffered injury as a result. Moreover, the plaintiffs must have plausibly alleged that a "significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."
Viewing the allegations in the complaint "through its judicial experience and common sense," the court just didn't think that consumers, acting reasonably, would be misled by getting a little bit more caffeine that they expected in an energy drink. The court explained, "consumers of the Products are generally seeking more caffeine, not less, as evidenced by their desire to purchase the Product in the first place . . . . Such consumers decide to purchase the Products, which are labeled as an 'energy drink' and contain a depiction of a lighting bold next to the caffeine content, because they want a substantial amount of caffeine. There, it defies common sense to suggest that it would be material that the Products contain a mere 7-11% additional caffeine --the exact thing those consumers are seeking."
Whether a claim is misleading really comes down to whether the misrepresentation or omission would be material to a reasonable consumer's purchasing decision. The court held here that giving consumers a little bit more than they were asking for was simply not material. The court wrote, "it is inconceivable to this Court that a consumer singularly focused on purchasing a beverage with a significantly-above-average concentration of caffeine would be concerned, must less disturbed, by the inclusion of a tiny bit more caffeine in that beverage."
It's pretty clear, I think, that if you're advertising a "zero calorie" drink or a "no sodium" potato chip, then that is what consumers are looking for. You wouldn't consumers buying your "non-fat" frozen yogurt and then suddenly gaining weight because it wasn't actually fat-free. But that's not what is going on here. There are lots of creative and other reasons why an advertiser may want to understate a benefit being provided – in a way that only benefits consumers and gives them more of what they are looking for. This decision provides some useful thinking that helps advertisers decide when that "false" claim they are planning to make may not be a problem after all.
In Re: Prime Energy Drink Consumer Litigation, 2025 WL 2197147 (S.D.N.Y. 2025).
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