In re: GNC Corp. v.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1724
In re: GNC CORPORATION; TRIFLEX PRODUCTS MARKETING AND
SALES PRACTICES LITIGATION (NO. II)
-------------------
YVONNE BROWN; SHAWN HOWARD, on hehalf of themselves and all
others similarly situated; MICHAEL LERMA, On Behalf of
Themselves and All Others Similarly Situated; JEREMY GAATZ,
On Behalf of Themselves and All Others Similarly Situated;
ROBERT TOBACK; ROBERT CALVERT; THOMAS FLOWERS; JOHN J.
GROSS; JUSTIN M. GEORGE; LOUIS LASTRES, on behalf of
themselves and all others similarly situated,
Plaintiffs - Appellants,
v.
GNC CORPORATION, a Delaware Corporation; GNC HOLDINGS, INC.;
RITE AID CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-md-02491-JFM)
Argued: March 25, 2015 Decided: June 19, 2015
Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Niemeyer and Senior Judge Hamilton joined.
ARGUED: Robert Jeffrey Berg, DENLEA & CARTON LLP, White Plains,
New York, for Appellants. Joseph R. Palmore, MORRISON &
FOERSTER, LLP, Washington, D.C., for Appellees. ON BRIEF: E.
Duncan Getchell, Jr., Richmond, Virginia, Gordon W. Schmidt,
Courtney S. Schorr, MCGUIREWOODS, LLP, Pittsburgh, Pennsylvania,
for Appellees.
2
FLOYD, Circuit Judge:
Appellants are consumers who purchased joint health
supplements produced and sold by GNC and Rite Aid. The
supplements all contain glucosamine and chondroitin, and most
contain additional purportedly active ingredients. Appellants
allege that GNC and Rite Aid have violated the consumer
protection laws of various states by marketing these supplements
as promoting joint health, even though many scientific studies
have shown that glucosamine and chondroitin are no more
effective than a placebo in treating the symptoms of
osteoarthritis. GNC and Rite Aid moved to dismiss the complaint
for failure to state a claim, arguing that the complaint failed
to adequately plead the falsity of the allegedly misleading
marketing representations. The district court granted the
motion in full. Because marketing statements that accurately
describe the findings of duly qualified and reasonable
scientific experts are not literally false, we affirm.
I.
Michael Lerma, Jeremy Gaatz, Robert Toback, Robert Calvert,
Shawn Howard, Thomas Flowers, John Gross, and Justin George
(collectively “Plaintiffs”) purchased a variety of joint health
supplements produced by General Nutrition Corporation and GNC
Holdings, Inc. (collectively “GNC”) and Rite Aid Corporation
3
(“Rite Aid”). In putative class actions filed in federal courts
in several states, they alleged that the supplements are
ineffective as marketed and that GNC and Rite Aid (“the
Companies”) violated various state consumer protection,
deceptive advertising, and express warranty statutes by
misrepresenting the effectiveness of the supplements. 1 The
Judicial Panel on Multidistrict Litigation transferred three of
these actions (and two tag-along actions) to the United States
District Court for the District of Maryland for coordinated or
consolidated pretrial proceedings. Plaintiffs’ counsel
established a leadership structure and filed a Consolidated
Amended Complaint (CAC), at issue in this appeal. 2 Because this
case comes to us on a motion to dismiss for failure to state a
claim, we state the facts as alleged in the CAC and assume them
to be true. Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d
597, 601 (4th Cir. 2015).
GNC manufactures, markets, distributes, and sells a line of
joint health dietary supplements under the brand name TriFlex:
1
The GNC plaintiffs (Lerma, Gaatz, Toback, Howard, and
Calvert) bring Counts I through VIII. The Rite Aid plaintiffs
(Flowers, George, and Gross) bring Counts IX through XIII.
2
Although Brown v. GNC Corp., 13-05890 (N.D. Cal. filed
Dec. 19, 2013), was also transferred to the district court by
the Multidistrict Litigation Panel, the CAC does not include
Yvonne Brown (the plaintiff in that action) among the named
plaintiffs.
4
GNC TriFlex; GNC TriFlex Fast-Acting; GNC TriFlex Sport; and GNC
TriFlex Complete Vitapak. All of the products contain the
compounds glucosamine hydrochloride and chondroitin sulfate
(“glucosamine and chondroitin”). They also all contain the
ingredients methylsulfonyl-methane (MSM) and hyaluronic acid
(HA). TriFlex Fast-Acting and TriFlex Sport also contain a
variety of purportedly beneficial herbs, including white willow
bark extract, hops cones extract, and Chinese skullcap root
extract. Finally, TriFlex Complete Vitapak contains tablets of
TriFlex Fast-Acting along with separate fish oil, willow bark,
and MSM supplements.
The TriFlex product labels represent that the supplements
“promote[] joint mobility & flexibility,” “protect[] joints from
wear and tear of exercise,” “rebuild[] cartilage and lubricate[]
joints,” and provide “[m]aximum strength joint comfort.” J.A.
30, 189–93. The product label for TriFlex Fast-Acting also
represents that the product was “[c]linically studied” by means
of a “12-week multi-center, randomized, double-blind, placebo
controlled study of 60 adults . . . taking 250 mg/day of the GNC
TriFlex Fast-Acting Blend” and was “shown to improve joint
comfort and function.” J.A. 193. The TriFlex Fast-Acting label
includes a chart representing that TriFlex Fast-Acting provides
a 20% improvement in joint function and 25-30% improvement in
joint flexibility. Id.
5
Rite Aid markets, distributes, and sells a line of house-
brand joint health dietary supplements: Rite Aid
Glucosamine/Chondroitin; Rite Aid Natural
Glucosamine/Chondroitin; Rite Aid Glucosamine Chondroitin
Advanced Complex; Rite Aid Glucosamine Chondroitin, Triple
Strength + MSM; Rite Aid Glucosamine Chondroitin + MSM; and Rite
Aid Glucosamine Chondroitin Advanced Complex with HA. The Rite
Aid products are manufactured by GNC, and GNC is contractually
obligated to indemnify Rite Aid for the claims at issue here.
All of the Rite Aid products contain glucosamine and
chondroitin. All of the products except Rite Aid
Glucosamine/Chondroitin and Rite Aid Natural
Glucosamine/Chondroitin also contain MSM, HA, and various
purportedly beneficial herbs including Chinese skullcap root
extract, black catechu, and boswellia serrata gum extract. All
of the products represent either that they “promote[] joint
health” or that they “help[] rebuild cartilage and lubricate
joints.” J.A. 195–205.
The named plaintiffs purchased several of the GNC and Rite
Aid products in a number of states. No plaintiff alleges that
he or she was harmed by consuming the products, or that the
products did not contain the advertised quantities of
glucosamine and chondroitin. Rather, Plaintiffs allege that the
products are incapable of providing the advertised joint health
6
benefits, and that they would not have purchased the products
but for the Companies’ false advertising. They therefore bring
suit on behalf of themselves and similarly situated purchasers
under the consumer protection laws of their states.
Lerma, a California resident, purchased TriFlex Fast-Acting
in California and brings Counts II and III under California’s
Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.,
and Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq.
Gaatz, an Illinois resident, purchased TriFlex Sport in Illinois
and brings Count IV under Illinois’s Consumer Fraud and
Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et
seq. Toback, a Florida resident, purchased TriFlex Complete
Vitapak in Florida and brings Count V under the Florida
Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201
et seq. Calvert, an Ohio resident, purchased TriFlex Fast-
Acting in Ohio and brings Count VIII for breach of express
warranty under Ohio’s UCC, Ohio Rev. Code Ann. § 1302.26.
Howard, a New York resident, purchased TriFlex Fast-Acting in
New York and brings Counts VI and VII under New York’s deceptive
business practices statute, N.Y. Gen. Bus. Law § 349, and false
advertising statute, N.Y. Gen. Bus. Law § 350. Flowers, a
California resident, purchased unspecified Rite Aid products in
California and brings Counts X and XI under California’s Unfair
Competition Law and Consumers Legal Remedies Act. Gross, a New
7
Jersey resident, purchased unspecified Rite Aid products in New
Jersey and brings Count XII under the New Jersey Consumer Fraud
Act, N.J. Stat. Ann. § 56:8-1 et seq. And finally, George, a
Pennsylvania resident, purchased Rite Aid Natural
Glucosamine/Chondroitin in Pennsylvania and brings Count XIII
under Pennsylvania’s Unfair Trade Practices and Consumer
Protection Law, 73 Pa. Stat. Ann. § 201-1 et seq.
In essence, Plaintiffs allege that the various health
representations made on the products’ packaging are false
because “the vast weight of competent and reliable scientific
evidence” indicates that glucosamine and chondroitin do not
provide the promised health benefits. J.A. 33. In support of
this conclusion, Plaintiffs cite a number of peer-reviewed
published studies that collectively show that “glucosamine and
chondroitin[] are ineffective at treating the symptoms of
osteoarthritis, whether taken alone or in combination with each
other.” J.A. 23. Plaintiffs note that while the cited studies
were performed on patients with arthritis, “experts in the field
deem these clinical studies to be appropriate proxies for
whether [glucosamine and chondroitin] are effective for . . .
both arthritic and non-arthritic users of these
ingredients.” Id. n.5. Plaintiffs cite at least nine studies
that are claimed to show that glucosamine, chondroitin, or both
are no more effective than a placebo in relieving the symptoms
8
of arthritis. Plaintiffs also cite two studies that purportedly
show that MSM is no more effective than a placebo in relieving
the symptoms of knee arthritis. The CAC does not include any
allegations about the effectiveness of the herbal compounds
found in the products, or cite any studies regarding the
effectiveness of any of these herbal compounds at relieving the
symptoms of arthritis.
The Companies moved to dismiss the CAC for failure to state
a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The district court granted the motion in full. The
court found that the plaintiffs had failed to plead that “any
reasonable expert would conclude from the cited [scientific]
studies that glucosamine and chondroitin are ineffective in non-
arthritic consumers,” and concluded that under all of the state
consumer protection laws at issue in this case, “[i]f there are
experts who support what [the Companies] say in their
advertisements, the advertisements are not false and
misleading . . . .” J.A. 248. In other words, the district
court held that a manufacturer cannot be liable for false
advertising so long as at least one qualified expert opines that
the representations made are truthful, even if the overwhelming
weight of scientific evidence is to the contrary.
The district court dismissed the CAC without prejudice and
expressly granted the plaintiffs leave to re-file if they could
9
plead (in accordance with Rule 11) that “any reasonable expert
would conclude from the cited studies that glucosamine and
chondroitin do not improve joint health in non-arthritic
consumers.” J.A. 249. Plaintiffs declined the court’s
invitation to amend the CAC and instead timely filed a notice of
appeal. We have jurisdiction over final judgments of the
district court pursuant to 28 U.S.C. § 1291. 3
After filing their appeal, Plaintiffs moved for
reconsideration by the district court under Rule 60(b)(1) of the
Federal Rules of Civil Procedure, arguing that the district
court’s initial order rested upon a mistake of law. 4 Although we
3
Under the final order doctrine, we may take jurisdiction
over a case dismissed for failure to state a claim only if “the
grounds for dismissal clearly indicate that ‘no amendment in the
complaint could cure the defects in the plaintiff's case.’”
Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d
1064, 1067 (4th Cir. 1993) (brackets omitted). Dismissals
without prejudice are generally not appealable final orders.
De’lonta v. Johnson, 708 F.3d 520, 523 n.2 (4th Cir. 2013). But
if, as here, a plaintiff declines the district court’s offer to
amend and chooses to stand on his or her complaint, the
plaintiff “waive[s] the right to later amend unless we determine
that the interests of justice require amendment.” Chao v.
Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir. 2005).
Because of Plaintiffs’ waiver, we treat this case as if it had
been dismissed with prejudice and therefore have jurisdiction
over this appeal.
4
The Rule reads, in relevant part: “On motion and just
terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect[.]” Fed. R. Civ.
P. 60(b)(1).
10
held in United States v. Williams, 674 F.2d 310, 313 (4th Cir.
1982), that Rule 60 does not authorize motions for correction of
a mistake of law, the district court elected not to deny the
motion on this ground and instead responded to the substance of
the motion. In its order (“the September Order”), the district
court reiterated the reasons stated in its initial order
dismissing the CAC and added one additional reason: It is unfair
to consumers who wish to gamble that glucosamine and chondroitin
may be effective if lay juries can effectively ban the sale of
glucosamine and chondroitin simply because the evidence of their
effectiveness is inconclusive. Plaintiffs did not file a
separate notice of appeal with respect to the September Order.
However, they now purport to appeal both the initial order and
the September Order.
II.
As a threshold matter, we must determine whether we have
jurisdiction to consider Plaintiffs’ purported appeal of the
September Order. Rule 3 of the Federal Rules of Appellate
Procedure requires would-be appellants to timely file a notice
of appeal with the Court “designat[ing] the judgment, order, or
11
part thereof being appealed.” 5 Fed. R. App. P. 3(c)(1)(B). In a
civil case in which the federal government is not a party, a
notice of appeal is timely if filed within 30 days after entry
of judgment. Fed. R. App. P. 4(a)(1). Plaintiffs timely filed
a notice of appeal following the district court’s dismissal of
the CAC, but did not file an amended notice of appeal or a new
notice of appeal within 30 days of the entry of the September
Order. They now contend—without the benefit of authority,
binding or otherwise—that it would be unfair for this Court to
require the filing of a separate notice of appeal following the
denial of a post-judgment motion.
Plaintiffs are apparently unaware of the generous tolling
provisions of Rule 4 of the Federal Rules of Appellate
Procedure, which provides a clear road map for appellants who
wish to file a post-judgment motion with the district court
before taking their appeal. Appellants who file a motion for
reconsideration within 28 days following the district court’s
entry of judgment may wait to file their notice of appeal until
after the disposition of the Rule 60 motion, because the timely
5
The timely filing of a notice of appeal is not merely a
matter of clerical convenience. Rather, it is “an event of
jurisdictional significance—it confers jurisdiction on the court
of appeals and divests the district court of its control over
those aspects of the case involved in the appeal.” Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per
curiam).
12
filing of the Rule 60 motion tolls the time for filing an
appeal. Appellants who miss this 28-day deadline can still file
separate notices of appeal within 30 days of each challenged
order and then consolidate the appeals. Fed. R. App. P.
4(a)(4)(A)(vi)&(B); see also Fobian v. Storage Tech. Co., 164
F.3d 887, 891 (4th Cir. 1999) (noting that “any appeal from the
denial” of a Rule 60 motion “can be consolidated with the appeal
from the underlying order”); 16A Charles Alan Wright & Arthur R.
Miller et al., Federal Practice and Procedure, § 3950.4 (4th ed.
2008).
Plaintiffs filed their Rule 60 motion 35 days after the
entry of judgment, too late to take advantage of Rule 4 tolling.
They also failed to file a separate notice of appeal from the
September Order. We therefore grant the Companies’ motion to
dismiss the appeal of the September Order for want of appellate
jurisdiction.
III.
A.
“We review de novo an appeal from a Rule 12(b)(6)
dismissal, accepting the complaint as true and drawing
reasonable inferences in the [plaintiffs’] favor.” Summers v.
Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014). Rule
8(a)(2) of the Federal Rules of Civil Procedure requires that a
13
complaint contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To “state a claim to relief that is plausible on its face,” a
plaintiff must “plead factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.
B.
In order to state a plausible claim for relief under all of
the state consumer protection statutes specified in the CAC,
Plaintiffs must plead facts from which we might infer that the
representations made on the products’ packaging were false,
deceptive, or misleading. 6 The district court held that
6
Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 490
(2d Cir. 2014)(“To state a claim under [New York] GBL § 349, a
plaintiff ‘must prove three elements: first, that the challenged
act or practice was consumer-oriented; second, that it was
misleading in a material way; and third, that the plaintiff
suffered injury as a result of the deceptive act.’” (quoting
Stutman v. Chem. Bank, 95 N.Y.2d 24, 29 (2000))); Virgilio v.
Ryland Grp., Inc., 680 F.3d 1329, 1338 n.25 (11th Cir. 2012) (“A
consumer claim for damages under [Florida’s] FDUTPA has three
(Continued)
14
Plaintiffs have failed to satisfy this minimal pleading burden.
For the reasons that follow, we agree.
1.
The district court held that “[i]f there are experts who
support what [the Companies] say in their advertisements, the
elements: (1) a deceptive act or unfair practice; (2) causation;
and (3) actual damages.”); McKinney v. Bayer Corp., 744 F. Supp.
2d 733, 753 (N.D. Ohio 2010) (“To state a claim for breach of
warranty under the [Ohio] UCC, a plaintiff must allege: (1) the
existence of a warranty; (2) the product failed to perform as
warranted; (3) the plaintiff provided the defendant with
reasonable notice of the defect; and (4) the plaintiff suffered
an injury as a result of the defect.”); Engel v. Novex Biotech
LLC, No. 14-cv-03457-MEJ, 2014 WL 5794608, at *2 (N.D. Cal. Nov.
6, 2014) (“In an action for false advertising under the
[California] UCL and CLRA, the plaintiff bears the burden of
proving the defendant’s advertising claim is false or
misleading.” (internal quotation marks omitted)); De Bouse v.
Bayer AG, 235 Ill. 2d 544, 550, (2009) (“A[n Illinois] Consumer
Fraud Act claim requires (1) a deceptive act or practice by the
defendant, (2) the defendant's intent that the plaintiff rely on
the deception, (3) the occurrence of the deception in a course
of conduct involving trade or commerce, and (4) actual damage to
the plaintiff that is (5) a result of the deception.”);
Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 122 (2014) (“An
unlawful practice under the [New Jersey] CFA requires
‘fraudulent, deceptive or other similar kind of selling or
advertising practices.’” (quoting Daaleman v. Elizabethtown Gas
Co., 77 N.J. 267, 271 (1978))); Koch v. Acker, Merrall & Condit
Co., 18 N.Y.3d 940, 941 (2012) (per curiam) (“To successfully
assert a claim under [New York] General Business Law § 349(h) or
§ 350, ‘a plaintiff must allege that a defendant has engaged in
(1) consumer-oriented conduct that is (2) materially misleading
and that (3) plaintiff suffered injury as a result of the
allegedly deceptive act or practice.’” (quoting City of N.Y. v.
Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 621 (2009))).
15
advertisements are not false and misleading . . . .” J.A. 248.
The district court clarified that Plaintiffs should not amend
the CAC unless they can plead that “any reasonable expert would
conclude from the cited studies that glucosamine and chondroitin
do not improve joint health in non-arthritic consumers.” J.A.
249. The district court’s test—while incorrect in its specific
formulation—accurately summarizes the law of false advertising. 7
The federal Lanham Act creates a private right of action
for corporate victims of “false or misleading” descriptions or
representations. 15 U.S.C. § 1125(a). Although consumers (such
as Plaintiffs) cannot invoke the protections of the Lanham
Act, Lexmark Int’l, Inc. v. Static Control Components, Inc., 134
S. Ct. 1377, 1390 (2014), the considerable body of federal
common law construing the Act is instructive in construing the
state laws at issue here. Courts uniformly interpret “false or
7
The district court’s reference to the specific studies
cited in the CAC is error. Under Twombly and Iqbal, “a
plaintiff need not ‘forecast’ evidence sufficient to prove the
elements of the claim.” Walters v. McMahen, 684 F.3d 435, 439
(4th Cir. 2012) (quoting Robertson v. Sea Pines Real Estate
Cos., 679 F.3d 278, 291 (4th Cir. 2012)). While the studies
cited in the CAC are statements of fact that may collectively
“raise a right to relief above the speculative level,” Twombly,
550 U.S. at 555, they do not comprise the full body of evidence
that the factfinder would ultimately consult to determine
liability. As will be developed below, the question of falsity
hinges on the existence (or not) of scientific consensus and not
on the conclusions that hypothetical scientists might draw from
those studies referenced in the CAC.
16
misleading” as creating two different theories of recovery in a
false advertising claim: A plaintiff must allege either (i) that
the challenged representation is literally false or (ii) that it
is literally true but nevertheless misleading. See,
e.g., Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134,
1139 (9th Cir. 1997); BASF Corp. v. Old World Trading Co., 41
F.3d 1081, 1089 (7th Cir. 1994); Castrol Inc. v. Pennzoil Co.,
987 F.2d 939, 943 (3d Cir. 1993); see also 44 Am. Jur. Proof of
Facts 3d 1, § 8 (2015) (collecting cases). A Lanham Act
plaintiff arguing that a representation is misleading must
produce extrinsic evidence of actual consumer confusion—it is
not enough for a court to determine after the fact that a
representation could have misled hypothetical
consumers. See Scotts Co. v. United Indus. Corp., 315 F.3d 264,
272–73 (4th Cir. 2002). However, a plaintiff arguing literal
falsity need not produce such evidence. Id. If a representation
is false, we assume as a matter of law that it is also
misleading.
In construing the diverse state statutes at issue here, we
apply this broadly shared understanding of the difference
between false and misleading representations. Every statute at
issue here imposes liability for misleading representations.
Although each state supplies its own test for determining
17
whether true statements are misleading, 8 statements that are
literally false are necessarily misleading within the meaning of
all of the statutes. Crucially, Plaintiffs have consistently
argued below and on appeal that the challenged representations
are false and that the challenged products are ineffective. The
CAC nowhere alleges, and Plaintiffs have at no time argued, that
any of the representations are literally true but misleading.
Because Plaintiffs elected to plead that the Companies’
representations are false rather than true but misleading, we
must determine whether the CAC states facts showing that the
representations are literally false. Plaintiffs’ theory of the
case is a syllogism: (i) the Companies represent that the
products improve joint health; (ii) scientific evidence will
show that glucosamine and chondroitin do not improve joint
health more than a placebo would; (iii) therefore, the
representations must be false because the products do not and
cannot improve joint health. However, the CAC does not allege
8
See, e.g., Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 155
(2002) (“[A] plaintiff must allege that he was, in some manner,
deceived.”); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 69
(1985) (asking “whether the ad itself is misleading to the
average consumer”); Guggenheimer v. Ginzburg, 43 N.Y.2d 268,
272–73 (1977) (“In weighing a statement's capacity, tendency or
effect in deceiving or misleading customers, we do not look to
the average customer but to the vast multitude which the
statutes were enacted to safeguard including the ignorant, the
unthinking and the credulous . . . .”).
18
that all scientists agree that glucosamine and chondroitin are
ineffective at providing the promised joint health benefits.
Rather, it alleges that “the vast weight of competent clinical
evidence,” J.A. 33, and the “overwhelming weight of high
quality, credible and reliable studies,” J.A. 35, support this
finding. Plaintiffs thereby concede that, although most duly
qualified scientific experts may agree that glucosamine and
chondroitin are ineffective, some reasonable experts disagree
and believe that glucosamine and chondroitin can provide the
symptom relief promised by the Companies. In other words,
contrary to the second prong of Plaintiffs’ own syllogism, the
CAC alleges that the scientific evidence regarding the efficacy
of glucosamine and chondroitin is equivocal. Plaintiffs have
therefore failed to allege that the challenged representations
are literally false.
Plaintiffs urge that it is inappropriate for the court to
resolve a “battle of the experts” on the pleadings. However, we
need not resolve any “battle of the experts” in order to decide
whether the CAC states a claim for false advertising. When
litigants concede that some reasonable and duly qualified
scientific experts agree with a scientific proposition, they
cannot also argue that the proposition is “literally false.”
Either the experts supporting the Companies are unreasonable and
unqualified (in which case, there is no real battle of the
19
experts to begin with) or they reflect a reasonable difference
of scientific opinion (in which case the challenged
representations cannot be said to be literally false). By
characterizing the dispute as a battle of the experts,
Plaintiffs highlight the CAC’s concession that a reasonable
difference of scientific opinion exists as to whether
glucosamine and chondroitin can provide the advertised joint
health benefits.
Plaintiffs also object that our holding today would “permit
a manufacturer of the most dubious product to engage an ‘expert’
and then contend it was immune from a consumer fraud action.”
Appellants’ Br. at 18. However, plaintiffs who believe that
no reasonable scientist would agree with the challenged
representations remain free to make that allegation. Having
done the due diligence required by Rule 11 of the Federal Rules
of Civil Procedure, they need not fear that the defendant’s
subsequent production of a surprise expert whose opinion is not
reflected in the published scientific literature would expose
them to Rule 11 sanctions. 9 See Morris v. Wachovia Sec., Inc.,
9
The label of TriFlex Fast-Acting references such a private
study. Although Plaintiffs were free to allege that the study
cannot have been conducted in a reasonable or reliable way
(because all reasonable experts support the opposite
conclusion), they failed to do so. We decline to speculate as
to why, if the evidence is as clear and univocal as they claim,
Plaintiffs exhibited such hesitation.
20
448 F.3d 268, 278 (4th Cir. 2006) (noting that Rule 11(b) is
violated only when a party has no factual basis for an
allegation in a signed pleading). Moreover, plaintiffs remain
protected from dubious experts by the Federal Rules of Evidence,
which “ensure that any and all scientific testimony . . . is not
only relevant, but reliable.” Cooper v. Smith & Nephew, Inc.,
259 F.3d 194, 199 (4th Cir. 2001) (quoting Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 588 (1993)).
Our holding today should not be interpreted as insulating
manufacturers of nutritional supplements from liability for
consumer fraud. A manufacturer may not hold out the opinion of
a minority of scientists as if it reflected broad scientific
consensus. Nevertheless, we need not decide today whether any
of the representations made on the Companies’ products are
misleading, because Plaintiffs chose not to include such
allegations in the CAC.
In sum, we hold that in order to state a false advertising
claim on a theory that representations have been proven to be
false, plaintiffs must allege that all reasonable experts in the
field agree that the representations are false. If plaintiffs
cannot do so because the scientific evidence is equivocal, they
have failed to plead that the representations based on this
disputed scientific evidence are false.
21
2.
The CAC is also defective because it fails to allege that
all of the ingredients contained in the products are incapable
of providing the represented benefits. This defect presents an
alternate ground for affirming the district court.
The CAC alleges that according to most scientists,
glucosamine and chondroitin, MSM, and HA do not provide the
benefits represented on the products’ packaging. However, most
of the products cited in the complaint contain additional
ingredients. All of the GNC products allegedly purchased by the
named plaintiffs contain ingredients not referenced in the CAC,
including white willow bark extract, hops cones extract, Chinese
skullcap root extract, and fish oil. All of the Rite Aid
products allegedly purchased by named plaintiffs except for Rite
Aid Natural Glucosamine/Chondroitin also contain additional
ingredients. Plaintiffs conceded before the district court that
the CAC does not “specifically address” what they refer to as
the “minor ingredients” in the products. 10 J.A. 125.
10
Despite this earlier concession, Plaintiffs represented
to this Court that “[t]he CAC . . . alleges that all of the
ingredients in Defendants’ products have been proven . . . to be
ineffective” and that “the cited studies . . . include all of
the ingredients in Defendants’ products.” Appellants’ Reply Br.
(Continued)
22
Most of the challenged representations—including “supports
improved joint health,” “protects joints,” “joint comfort,” and
“rebuilds cartilage”—refer to the products as a whole. 11 The
products, except for Rite Aid Natural Glucosamine/Chondroitin,
contain herbal compounds that ostensibly contribute to joint
health and comfort. To the extent that Plaintiffs failed to
allege that all of the purportedly active ingredients in each
product are ineffective at promoting joint comfort, health, and
flexibility, they have failed to adequately plead falsity of the
representations regarding the products as a whole. See Toback
v. GNC Holdings, Inc., No. 13-80526-CIV, 2013 WL 5206103, at *5
(S.D. Fla. Sept. 13, 2013) (“Plaintiff’s allegations regarding
the inefficacy of glucosamine and chondroitin simply fail to
address the efficacy of the TriFlex Vitapak’s multifarious
1, 8 (emphasis added). Plaintiffs’ counsel is reminded “that a
lawyer’s duty of candor to the court must always prevail in any
conflict with the duty of zealous advocacy.” U.S. Dep’t of
Hous. & Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of Va.,
Inc., 64 F.3d 920, 925 (4th Cir. 1995).
11
GNC TriFlex Complete Vitapak represents on the side of
the package and in small print that “[g]lucosamine and
chondroitin help preserve joint function and rebuild cartilage.”
J.A. 189. GNC TriFlex Fast-Acting represents, in small print on
the side of the package, that “[s]cientific research has shown
that these building block compounds [i.e., glucosamine and
chondroitin] help to support the body’s natural ability to
regenerate cartilage and lubricate joints thus supporting joint
health integrity and function.” J.A. 193.
23
composition in promoting joint health, and thus fail to raise
Plaintiff’s claim, that the Vitapak as a whole does not function
as advertised, above the speculative level.” (emphasis
added)); McCrary v. Elations Co., LLC, No. EDCV 13–0242 JGB
(OPx), 2013 WL 6402217, at *5 (C.D. Cal. Apr. 24, 2013)
(dismissing claims regarding the overall formulation of a
supplement when plaintiff provided no scientific studies
regarding several of the purportedly active ingredients).
We therefore affirm the dismissal of all claims regarding
the overall formulation of all products except for Rite Aid
Natural Glucosamine/Chondroitin on the alternate ground that the
CAC does not allege that the products’ ingredients are
ineffective as marketed.
3.
The Companies also argue that the studies cited in the CAC
are not specific enough to raise any plausible inferences
regarding the efficacy of the challenged products. We find this
line of reasoning unpersuasive and inconsistent with notice
pleading under Twombly and Iqbal.
First, the Companies argue that because the scientific
studies cited in the CAC concerned patients with osteoarthritis,
their findings are inapplicable to people without arthritis who
experience joint pain and stiffness. Plaintiffs respond that we
24
must take as true the CAC’s allegation that “experts in the
field deem [clinical studies conducted on arthritic patients] to
be appropriate proxies for whether the ingredients are effective
. . . for both arthritic and non-arthritic users.” J.A. 23 n.5.
Plaintiffs further note that the symptoms of arthritis assessed
in the studies—joint stiffness, pain, and discomfort—are
precisely the symptoms that the products purport to remedy. For
example, the CAC cites one study that concluded that
“glucosamine and chondroitin, alone or in combination, did not
reduce joint pain . . . compared with a placebo,” and another
that found that “glucosamine and chondroitin did not rebuild
cartilage.” J.A. 37–38. It may well be that glucosamine and
chondroitin work differently in people with arthritis than in
people without arthritis, but such a factual dispute is not
susceptible to resolution at the motion-to-dismiss stage.
Second, the Companies argue that the scientific studies
cited in the CAC are insufficient evidence of falsity because
they did not assess the specific formulations used in the
products or the synergistic effects between the products’
ingredients. They argue that the studies are inapplicable
because they considered different amounts and combinations of
glucosamine and chondroitin. Again, however, our inquiry at
this stage is limited to the plausibility of the CAC and not the
ultimate truth of its allegations: The applicability of a study
25
regarding different dosages of the same ingredients to the
products at issue is not susceptible to resolution at the
motion-to-dismiss stage. See Quinn v. Walgreen Co., 958 F.
Supp. 2d 533, 544 (S.D.N.Y. 2013); Pearson v. Target Corp., No.
11 CV 7972, 2012 WL 7761986, at *2 (N.D. Ill. Nov. 9, 2012)
(“[W]hether or not the proffered studies are applicable to Up &
Up Triple Strength is a question of fact that I do not decide at
this stage. The fact that these studies looked at products that
shared the same active ingredients-Glucosamine, Chondroitin, and
MSM-makes Plaintiff's claim facially plausible.”); see
also Jovel v. i-Health, Inc., No. 12-CV-5614 (JG), 2013 WL
5437065, at *9 (E.D.N.Y. Sept. 27, 2013). We therefore decline
to adopt these grounds for affirming the district court’s order.
IV.
For the foregoing reasons, we hold that the CAC fails to
state a claim upon which relief can be granted. The judgment of
the district court is therefore
AFFIRMED.
26