Cardenas brought a putative class action against NBTY and
Rexall for selling Osteo-Bi Flex joint health supplements without support for
the efficacy claims they made. She
alleged violations of the CLRA and UCL as well as breach of express warranty.
The court denied defendants’ motion to dismiss.
Cardenas alleged that she read the front, back and sides of
the package and, in reliance on the representations, bought the product for her
joint pain. But it didn’t help to
promote mobility, renew cartilage, maintain healthy connective tissue, or
improve joint comfort, as represented.
Defendants allegedly promote these benefits as a result of the products’
ingredients, especially the primary active ingredient, glucosamine
hydrochloride. This is an amino sugar
that the body produces and distributes in cartilage and other connective tissue,
but Cardenas alleged that there was no competent and reliable scientific
evidence that taking glucosamine (especially orally) leads the body to
metabolize it in a way that provides the promised benefits. “Clinical cause and effect studies have found
no causative link between glucosamine hydrochloride supplementation and joint
renewal or rejuvenation.” She made
similar allegations about other ingredients (chondroitin,
methylsulfonylmethane, hyaluronic acid, vitamin D, vitamin C, manganese, boron,
or collagen).
Most Osteo Bi-Flex products also contain 5–LOXIN Advanced, a
concentrated extract of Boswellia Serrata (“AKBA”). (Previous
litigation related to the matter.) Defendants claim that AKBA results in
“improvement in joint comfort within 7 days,” but Cardenas alleged that there was
no competent and reliable scientific evidence that taking AKBA (especially
orally) provided the promised benefits, and that clinical cause and effect
studies had been “unable to confirm” any relationship between AKBA
supplementation and joint renewal or rejuvenation.
The product packages say that two studies support the claim
that Osteo Bi-Flex users “show[] improvement in joint comfort,” but don’t
provide information on locating the studies.
Defendants argued that Cardenas lacked standing to bring
claims about product varieties she didn’t buy and ads she didn’t view. They also argued that claims of missing
substantiation aren’t actionable, and that her allegations about clinical
studies were conclusory and didn’t explain what representations were false or
misleading.
On standing, the court found her allegations sufficed to
allege injury in fact traceable to the defendants’ acts and redressable by a
court decision. She at least had
standing as to the Regular Strength product she bought and the representations
on its packaging. These allegations also
satisfied the UCL’s requirement of economic injury—she allegedly lost money on
an ineffective product.
What about standing for other products/ads? Some cases say there’s no standing to sue
based on such things, but other cases take a different approach, asking in
traditional class action style whether the claims have the same core factual allegations
and causes of action. This is right: if
we both saw the same claim, it shouldn’t matter for standing that you saw it on TV and I saw it in
the newspaper any more than it should matter if I saw it on my copy of the
newspaper and you saw it in yours. The
treatises and the vast weight of authority are in agreement here: “whether a
class representative may be allowed to present claims on behalf of others who
have similar, but not identical, interests depends not on standing, but on an
assessment of typicality and adequacy of representation.” Thus, Cardenas had standing to assert her UCL
and CLRA claims based on her purchase of Osteo Bi-Flex Regular Strength “and
the product’s more general representations that its line of Osteo Bi-Flex
products, which ostensibly share many similarities in ingredients, ‘improve
mobility,’ ‘improve joint comfort,’ and ‘support[ ] renewal of cartilage.’” Rule 23 analysis would determine whether she
could present claims on behalf of purchasers of other Osteo Bi-Flex products.
Next, the court turned to Rule 9(b), which the Ninth Circuit
has held applies to CLRA and UCL claims where a plaintiff alleges that a
defendant engaged in fraudulent conduct.
Cardenas specifically asserted that defendants failed to disclose material
facts when they knew or should have known that the representations were
unsubstantiated, and these were allegations sounding in fraud. Cardenas didn’t allege scienter as an
inherent part of her UCL claim, but it was difficult for the court to distinguish
which parts of her UCL claim sounded in fraud and the court ultimately found
that the UCL claim as a whole also needed to meet Rule 9(b)’s standards, even
though not all claims of false advertising are necessarily grounded in fraud. In any event, the court found that the
complaint sufficiently alleged nondisclosure and scienter, and she alleged
justifiable reliance and resulting damage as well. The allegation that clinical cause and effect
studies had found no link between the individual ingredients and the purported
benefits of Osteo Bi-Flex was sufficient on falsity, since defendants’
representations seemed to be based at least in part on the asserted efficacy of
individual ingredients. If Cardenas’s
claims about the studies are true, “then it stands to reason that Defendants'
representations that AKBA ‘help[s] with joint flare-ups’ are actually false. Because Defendants bolster their overarching
claims of joint benefits by referring to the importance and efficacy of a
particular ingredient which, if Plaintiff is to be believed, has no actual
joint benefits, then Defendants' overarching claims are most likely false as
well.” It was the same with the other
ingredients. The complaint provided
defendants of sufficient notice of the alleged fraud, allowing them to prepare
an adequate defense.
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