Tuesday, March 19, 2019

consumer successfully pleads falsity for "weight management" supplement

Nathan v. Vitamin Shoppe, Inc., 2019 WL 1200554, No. 17-cv-01590-BEN-KSC (S.D. Cal. Mar. 12, 2019)

Vitamin Shoppe sells Garcinia Cambogia Extract with a label promising “Weight Management” and “Appetite Control.” Nathan alleged that this was false and misleading, since GCE (also known as HCA) can’t deliver those benefits over placebo. Dismissing a previous complaint, the court emphasized a distinction between “Weight Management” and “Appetite Control” and the alleged misrepresentations about weight loss, which the court thought was completely different. (Given the reasons most, perhaps all, people take supplements to manage their weight and control their appetites, I consider that exactly the kind of legalistic distinction that consumer protection law is supposed to protect consumers against.)

In the amended complaint, Nathan added references to more studies and alleged misrepresentations about weight management and appetite control specifically.  

First, this wasn’t a pure lack of substantiation claim.  “[A]n advertising claim is false if it has ‘actually been disproved,’ that is, if the plaintiff can point to evidence that directly conflicts with the claim.” Nathan did so here because her cited studies tested, among other things, whether the supplement might affect body weight regulation by inducing satiety and reducing food intake, and found no statistically significant difference from placebo, showing that it was ineffective “with respect to satiety and energy intake.”  The study measured variables relevant to “Appetite Control” and “Weight Management” (e.g., hunger, appetite, anticipated food intake, desire to eat, fullness, satiety, and thirst) and reached a conclusion contradicting the label claims.

Nathan further alleged that, “for a supplement to be effective in aiding weight management, it must help users either (1) lower their energy intake, (2) increase their energy output, or (3) otherwise alter the manner in which the body processes the energy they consume.” As pled, her cited studies indicated that the supplement did none of these things: the supplement didn’t change calorie intake, metabolism or energy expenditure, or fat oxidation (the only relevant mechanism for (3)).  The court declined to parse the studies further on a motion to dismiss.

Vitamin Shoppe argued that no reasonable consumer would be deceived because the label didn’t include words like “weight loss” or “appetite reduction,” and provided a disclaimer: that its “statements have not been evaluated by the Food and Drug Administration,” and it “is not intended to diagnose, treat, cure or prevent any disease.” Nonetheless, it was still plausible that a consumer would be misled by “weight management” and “appetite control.” Nor would the disclaimer (which of course doesn’t actually disclaim any of the allegedly false/misleading parts of the statement, even if it goes indirectly to the level of proof behind them) suffice on a motion to dismiss.

Vitamin Shoppe argued, as the awful and now-rejected-in-the-9th-Circuit In re GNC case did, that “the mere existence of scientific support and an acknowledgement that the issue is not settled are fatal to Plaintiffs claims.” That was a weighing of the evidence inappropriate on a motion to dismiss.

The court also declined to stay the case under the primary jurisdiction doctrine. This was “a typical false advertising case well within the province of the courts,” and there was no evidence that the FDA had any level of interest in regulating GCE products in this context.

Under settled law, though, Nathan couldn’t assert claims for injunctive relief because she alleged the product was worthless, so she’d have no reason to buy it if the labels were trustworthy.

Rule 9(b): it was enough to allege that in approximately “February 2017 in San Diego,” she “purchased a 180-caplet bottle of [the Product] for approximately $20 from Vitamin Shoppe” without identifying the exact address, date of purchase, purchase price, or whether she paid cash or credit. Nor was she required to allege that she consumed the product, that she took it as directed, or her weight and exercise habits, none of which were relevant to the alleged mislabeling.

For the reasons discussed above, she also properly alleged a breach of express warranty claim: these were plausibly affirmations of fact or promise, not “merely indications of use for the Product.” So too with the implied warranty of merchantability; her claims plausibly indicated that the product was “not ‘fit for the ordinary purposes for which such goods are used’ or fails to ‘conform to the promises or affirmations of fact made on the container or label.’” She wasn’t required to try the product to bring these claims.

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