7-11% oversupply of caffeine in energy drink wasn't plausibly material

In Re: Prime Energy Consumer Litigation, No. 24 Civ. 2657 (KPF) (S.D.N.Y. Jul. 31, 2025)

You can tell how this will go from the first sentence: “For those consumers seeking a jolt of energy in caffeinated-beverage form, does the inclusion of a smidgen more caffeine than advertised amount to a deceptive practice?” The plaintiffs alleged that Prime’s energy drinks contain 15-25 milligrams more caffeine than the 200 milligrams represented on its labels and in its advertising. The label states: “CONTAINS: 200mg OF CAFFEINE PER 12 OZ SERVING[.]” On the side is an icon of a lightning bolt with the language: “200mg CAFFEINE[.]” But, plaintiffs alleged, “based upon testing commissioned by Plaintiffs’ attorneys, the Products actually contain between 215-225 milligrams of caffeine rather than the advertised 200 milligrams.”

First, the court finds the falsity allegations insufficient, lacking information about “how many cans of the [Products] were tested, when they were manufactured, when and where they were purchased, and how the cans were selected for testing.” Merely alleging that the tests showed extra caffeine wasn’t enough. Even though plaintiffs aren’t required to disclose all the details of their testing at the pleading stage, they need some. For example, a plaintiff could rely on a press release from the New York City Department of Consumer Affairs announcing a preliminary finding that Whole Foods’ New York City locations had systematically overcharged customers for pre-packaged foods by overstating the weights of the products, but the press release explicitly stated that the “DCA tested packages of 80 different types of pre-packaged products and found all of the products had packages with mislabeled weights. Additionally, 89 percent of the packages tested did not meet the federal standard for the maximum amount that an individual package can deviate from the actual weight[.]”

“That is more information than Plaintiffs have provided here.” The court noted the absence of information “as to the number of cans tested, whether various flavors were tested, whether various lots were tested, and, importantly, how many cans tested actually contained more than 200 milligrams of caffeine.” Plaintiffs don’t have to prove the accuracy of their findings or the rigor of their methodology, but they do need “some non-conclusory factual allegations as to the alleged testing.”

Separately, even accepting the allegations, it wasn’t plausible that an oversupply of such a small percentage was materially misleading. The complaint indicated that consumers of energy drinks “are generally seeking more caffeine, not less, as evidenced by their desire to purchase the Product in the first place (in comparison to, for example, purchasing a cup of coffee or a can of Red Bull, each with about half the caffeine content).” The label “energy drink” and the lightning bolt icon indicated that consumers “want a substantial amount of caffeine. Therefore, 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.”

Plaintiffs suggested that the amount of caffeine was always material, particularly where adverse reactions to overdoses could occur (e.g., with children). “However, 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, much less disturbed, by the inclusion of a tiny bit more caffeine in that beverage.” Children were a red herring; none of the plaintiffs was a child, nor were there allegations that children consumed the drinks and suffered side effects. Given the allegations that there is “no proven safe dose of caffeine for children” and that the cans themselves contain a warning that they are “not recommended for children,” an oversupply couldn’t be material. this action.

Also, one plaintiff alleged that he’d be willing to buy the products again if they were properly labeled, indicating that the alleged 7-11% difference in caffeine content wasn’t in fact material to him.

Finally, and perhaps of even broader import, the court noted in dicta that it didn’t think there was any injury from merely purchasing a misdescribed product. (Citing Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 56 (1999) (holding that “customers who buy a product that they would not have purchased, absent a manufacturer’s deceptive commercial practices,” have not suffered an injury under General Business Law § 349).) The court disagreed with Second Circuit cases finding that alleging that consumers either paid a price premium or would not have purchased the products if they had known the truth sufficed under NY law.

Claims under other states’ laws, along with warranty, unjust enrichment, and fraud claims also failed.