11th Circuit Splits Misleading Advertising Decision

State-law claims pre-empted; Lanham Act claims soldier on

Pumped

A visit to the website of HBS International subsidiary Allmax is an experience. Like many of its competitors, Allmax, which creates diet and nutrition supplements for bodybuilders and other athletes, boasts a hyperkinetic web presence ‒ gigantic sans-serif fonts, vivid colors and slow-zoom effects that evoke the cinema of Michael Bay.

However, compared to their hyperkinetic web presence, an ingredients list on Allmax product labels seems nearly invisible. But one such product landed Allmax and its parent company, HBS, in Georgia's Northern District Court on claims of deceptive advertising.

Lift-Off

Competitor Hi-Tech Pharmaceuticals Inc. sued Allmax and HBS in 2016 for allegedly misrepresenting the contents of Allmax's "Ultra-Premium 6-Protein Blend HexaPro," a protein-powder drink mix that targets bodybuilders. Hi-Tech charged that HBS and Allmax violated the Georgia Uniform Deceptive Trade Practices Act and the Lanham Act by misrepresenting the quantity of protein in the product and the source of that protein. Additionally, Hi-Tech claimed that the claims on the label about the source of protein were close enough typographically to claims about the overall amount of protein to mislead consumers into believing that all the protein in the product came from the same source.

In the complaint, the descriptions of various protein sources are very detailed and go into relevant specific points. Georgia's Northern District Court granted HBS's motion to dismiss both of Hi-Tech's claims. The court determined that the Georgia state law claims were pre-empted by the Food, Drug, and Cosmetic Act ‒ in part for failing to establish the protein content of the product in question through an FDA-compliant test.

The district court also tossed the Lanham Act claims, holding that HexaPro's label "provides a detailed breakdown of all ... ingredients, including the mix of amino acids," which should be enough to inform...