multiple ingredients defeat consumer's supplement falsity claim

Toback v. GNC Holdings, Inc., No. 13–80526–CIV, 2013 WL 5206103 (S.D. Fla. Sept. 13, 2013)

Toback sued GNC over its TriFlex products, allegedly falsely advertised as promoting joint health and function.  He cited numerous studies allegedly demonstrating that two ingredients, glucosamine and chondroitin, are ineffective for that purpose. He also alleged that he bought TriFlex Vitapak and was deceived in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The court granted GNC’s motion to dismiss.

First, despite some federal district court cases to the contrary, the court ruled that Rule 9(b) didn’t apply.  FDUTPA was enacted to provide remedies for conduct outside the reach of traditional common law torts like fraud, so the complaint didn’t sound in fraud and didn’t require Toback to plead causation with particularity.  Though Florida courts haven’t defined a clear causation standard under FDUTPA, federal courts have held that causation exists when the alleged misrepresentations would have deceived an objectively reasonable person.  Toback successfully pleaded facts suggesting that the representations at issue would have deceived reasonable consumers.

Further, the court found that Toback alleged more than lack of substantiation (though the court noted that it was unclear whether FDUTPA would preclude a lack of substantiation claim).  Instead, Toback affirmatively alleged that studies showed the relevant ingredients ineffective.  However, Toback’s standing was limited to claims about TriFlex Vitapak, not other TriFlex products.  In the 11^th Circuit, at least one named plaintiff must have Article III standing for each class subclaim.  This doomed the complaint, because the Vitapak had other components that allegedly contributed to its efficacy.  Toback argued that the “alchemy of adding some other ingredients to the glucosamine and chondroitin” in TriFlex products wouldn’t “miraculously” render the products effective, and that the Vitapak didn’t work for him.  That wasn’t enough, because of the many other ingredients in the Vitapak: cutch tree extract, Chinese skullcap root extract, methylsulfonyl-methane, white willow bark extract, fish oil, and other substances.  (Ah, a roadmap for continuing to make unfounded claims, as long as you stay one ingredient ahead of the studies.  Thanks, DSHEA!)  Thus, the allegation that the Vitapak as a whole didn’t function as advertised was only speculative.  The allegation that the product didn’t work for him was too conclusory to help.