The supplement maker failed to show consumer deception or injury for most challenged marketing statements.
The federal district court in Dallas, Texas granted in part and denied in part a defendant's motion for partial summary judgment in a dispute between two iron supplement competitors. The court concluded that the plaintiff lacked evidence of actual consumer deception for most of the challenged statements and lacked evidence of injury or damages on its Lanham Act claim. It allowed a narrower claim for injunctive relief and the breach of contract claims to proceed, reasoning that falsity, likely injury, and compliance with a settlement agreement turned on disputed facts (Colorado Biolabs, Inc. v. Three Arrows Nutra, LLC, No. 3:25-cv-00601-D (N.D. Tex. Oct. 14, 2026)).
Background. Colorado Biolabs, Inc. (CBL) sells Heme Iron supplements under the name Proferrin. Heme Iron is derived from animal sources and absorbs at a much higher rate than Non-Heme Iron, which generally comes from plant sources. CBL's competitor, Three Arrows Nutra, LLC, marketed its IronRepair products as containing 20 mg of Heme Iron. Beginning in August 2021, in-house and third-party testing by CBL found that Heme Iron was not detectable in those products. CBL sued Three Arrows for false advertising and unfair competition under the Lanham Act.
That suit settled. Three Arrows agreed to pay $400,000 and to re-label and re-brand the products by September 1, 2024, removing all representations that they contain Heme Iron. It also agreed that, from that date forward, it would not represent, expressly or by implication, that its products contain any amount of Heme Iron, and that neither party would disparage the other. CBL released claims arising from the past or current branding, labeling, marketing, advertising, or sale of the IronRepair products.
In March 2025, CBL filed this action, alleging breach of the settlement agreement, false advertising and unfair competition under the Lanham Act, common law unfair competition, and business disparagement. CBL alleged that Three Arrows' owner, Krystal Moore, and a brand ambassador, Caitlyn Hartigan, continued to represent or imply that the products contain Heme Iron and disparaged CBL. The court had previously dismissed the business disparagement claim. Three Arrows moved for summary judgment on the remaining claims and moved to exclude or strike the opinions of CBL's retained and non-retained experts.
Lanham Act and unfair competition claims. The court analyzed the Lanham Act and common law unfair competition claims as coextensive, noting that courts in the Fifth Circuit generally analyze them together. A false advertising plaintiff must show a false or misleading statement of fact about a product; that the statement deceived or had the capacity to deceive a substantial segment of potential consumers; that the deception is material; that the product is in interstate commerce; and that the plaintiff has been or is likely to be injured. Where a statement is literally false, the court presumes consumer deception. Where a statement is ambiguous or literally true but misleading, the plaintiff must present evidence of actual consumer deception. A plaintiff seeking damages must show actual deception through consumer reaction evidence or surveys, while a plaintiff seeking injunctive relief must show only a tendency to deceive, meaning that at least some consumers were confused.
The court first addressed the "Marketing Statements," which were comments posted in an online group focused on iron deficiency, such as statements that the iron was derived solely from bovine spleen. Apart from one statement by Moore, CBL offered no evidence and made no argument that these statements were literally false, and its conclusory assertion to the contrary was insufficient. The court therefore asked whether CBL raised a fact issue on actual consumer deception, and concluded that it had not.
CBL pointed to group members who thanked Moore for "clarifying" one statement, and to a clinic's reply to Moore's email that her response was "really helpful." The court observed that none of this evidence related to any Marketing Statement other than the one Moore statement, and that the clinic email was not pleaded as a basis for the claim. More fundamentally, expressions of thanks reveal nothing about what the speaker understood to be clarified regarding Heme Iron content. To the extent the comments showed confusion, they suggested confusion resulting from Three Arrows' label changes, not from any Marketing Statement. The court granted summary judgment on the Lanham Act and unfair competition claims to the extent based on the Marketing Statements, other than the one addressed below.
The exception concerned Moore's answer of "yes" to a group member's question whether the products were "all heme." A reasonable jury could find that answer literally false, based on internal testing showing Heme Iron constituted only 3.7% of the label claim for one product (under 1 mg) and 1.7% for another (.34 mg). Materiality was therefore presumed.
The court nonetheless granted summary judgment on damages. CBL argued that, to recover disgorgement of profits under 15 U.S.C. § 1117(a), it need not show lost sales or that the misrepresentations caused consumers to buy Three Arrows' products. The court rejected that position as inconsistent with Fifth Circuit law. Although § 1117(a) permits a burden-shifting method for calculating profits, a plaintiff who fails to present evidence that the defendant benefitted from the false advertising may not recover profits. CBL offered evidence of Three Arrows' gross sales but nothing linking its profits to the allegedly false statement or showing other damages. That evidence was insufficient to create a genuine issue on injury or damages.
The Injunctive relief claim was different. CBL showed undisputed evidence that it sells Heme Iron supplements, that Three Arrows competes directly in the same market, and that Heme Iron has benefits over Non-Heme Iron. From that evidence a reasonable jury could find that CBL is likely to be injured by statements implying that Three Arrows' products contain Heme Iron. The court denied summary judgment on that claim.
Pre-settlement release. Three Arrows moved for summary judgment on CBL’s Lanham Act and unfair competition claims based on “website statements.” Three Arrows argued that CBL released claims based on pre-settlement "Website Statements." Setting aside whether Three Arrows waived the release defense by failing to plead it, the court noted that both parties agreed the release did not reach conduct post-dating the settlement, and that CBL did not intend to pursue pre-settlement statements. The court granted this ground, but leaving the claim for trial to the extent it rests on post-settlement website statements.
Breach of contract claim. The court denied summary judgment on the claim that Three Arrows breached the No-Misrepresentation Obligation. A reasonable jury could find that Moore's "yes" response, in context, implied that the products contain Heme Iron, as could her comment that Heme Iron is animal derived and the products are made from bovine spleen only. Three Arrows invoked the agreement's carveout for references to Heme Iron in media intended solely for educational purposes. But the carveout applies only if the statements are not associated with marketing or sale of its products and do not state or imply that the products contain Heme Iron. Whether the owner's statements were also meant to imply the presence of Heme Iron is a fact question, and if the jury finds an implication, the carveout does not apply.
The court also rejected Three Arrows' substantial performance defense, which requires showing that any deviation did not severely impair the contract's purpose or was technical or unimportant. Substantial performance is generally a fact question, and a jury could find the alleged breaches material.
On the Non-Disparagement Obligation, Three Arrows argued that the brand ambassador was not its agent and did not act on its behalf. The agreement defines "Party" to include agents and "all other persons acting, or purporting to act, on its behalf." Reading the definition to give each term meaning, the court assumed the latter phrase differs from "agent," and noted that any ambiguity would itself be a fact issue. CBL offered a text exchange in which Three Arrow’s owner told the brand ambassador she could not personally disparage CBL, the brand ambassador said she could, and the owner responded that the brand ambassador's proposed approach was fine. The brand ambassador then posted comments criticizing CBL. A reasonable jury could find she was acting or purporting to act on Three Arrows' behalf.
As to damages for breach, the court declined to speculate, noting that CBL will be limited to the amount that restores it to the position it would have occupied absent breach.
Expert motions. Because the summary judgment ruling may affect how CBL uses its experts' testimony, the court deferred ruling on the motions to exclude and strike until the pretrial conference or an objection at trial, and denied them without prejudice.