Lance Armstrong’s “secret weapon” claim constitutes non-actionable “puffery”

Immersed in a mire of recent legal woes, Lance Armstrong, once one of the most famous and idolized athletes in the world after winning seven Tour de France titles, can take some comfort from the recent holding of a federal judge in Los Angeles. Last week, the court found that Armstrong’s advertising pitches on behalf of FRS Co., claiming that the company’s energy and sports drinks, concentrates, chews and powders were his “secret weapon” for success constituted non-actionable “puffery,” rather than a violation of California state law prohibitions on false advertising and unfair competition. See Martin v. FRS, 13-01456, U.S. District Court, Central District of California (Los Angeles). Armstrong was a spokesman for, and an equity owner of FRS Co. from April 2007 until late 2012. In a series of advertisements, FRS used the phrase “Lance Armstrong’s Secret” and “Lance’s Secret Weapon” in reference to its energy products. During a nationally televised interview with Oprah Winfrey in January 2013, Armstrong acknowledged that he had used banned performance-enhancing drugs during his athletic career to enhance his cycling performance, including in all seven of his Tour de France victories. The lawsuit, a class-action brought on behalf of all people who bought FRS products “based in whole or in part” on the Armstrong marketing campaign from 2007 to 2012, alleged that if the plaintiffs had known that illegal performance-enhancing substances, and not the use of FRS products were responsible for Armstrong’s athletic success, they would not have purchased FRS products, or would have purchased fewer products and paid a lower price for the products they purchased. In finding that Armstrong and FRS’ statements describing the energy products as a “secret weapon” constituted non-actionable puffery, the court noted that puffery involves “outrageous generalized statements, not making specific claims, that are so exaggerated as to preclude reliance by consumers.” The court noted that the distinguishing characteristics of puffery are “vague, highly subjective claims as opposed to specific, detailed factual assertions.” In finding that the phrase “secret weapon” fell within this description, the court observed that the phrase is unquantifiable, and “says nothing about the specific characteristics or components of FRS products.” The court further found that the plaintiffs’ allegations involving the “secret weapon” statements required a reasonable consumer to make an unreasonable inference, namely that an energy drink could be “the proprietary reason a decorated cyclist achieves success.” The court commented that such an inference requires a reasonable consumer to discount extensive training, natural ability or “even illegal [performance enhancing drug] use.” The court further observed that after advertising a product, it is no longer a “secret,” making the “secret weapon” campaign a “self-defeating concept.” Because the court reached its conclusion concerning the advertising at issue at the motion to dismiss stage, the court granted the defendants’ motion to dismiss with leave for the plaintiffs to amend their complaint. The deadline for the plaintiffs to file an amended complaint stating false advertising and unfair competition claims against Armstrong and FRS is March 18, 2014.

This article was prepared by Kathy Grant (Katharyn.grant@nortonrosefulbright.com / + 1 210 270 7182) of Norton Rose Fulbright’s United States’ Intellectual property group.