Antitrust Law Daily Wrap Up, ADVERTISING—C.D. Cal.: Claims that nutrition supplement advertising and labeling violated California’s consumer protection statutes partially dismissed, (Aug 13, 2015)

By Michael Menzhuber, J.D., LL.M.

A motion to dismiss an individual’s complaint, on behalf of himself and other similarly situated, that a nutrition supplement manufacturer knowingly and willfully misrepresented the contents of one of its products was granted in part and denied in part by the federal district court in Los Angeles (Bruaner v. MusclePharm Corporation, August 11, 2015, Olguin, F.).

Background. Jake Bruaner purchased a container of MusclePharm Combat Protein Power (protein powder). The manufacturer, MusclePharm Corporation (MP), made representations, in print and on its website, regarding the protein content in the protein powder. Bruaner believed these representations were false. He alleged that MP knowingly and willingly misrepresented the contents of its protein powder and asserted causes of action for: (1) violation of California’s Consumer Legal Remedies Act (CLRA); (2) violation of California’s False Advertising Law (FAL); (3) violation of California’s Unfair Competition Law; (4) unjust enrichment; and (5) breach of express warranty. In response, MP filed a motion to dismiss. In its motion to dismiss, MP asserted that: (1) Bruaner’s claims were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) and FDA regulations; (2) Bruaner lacked standing to assert claims based on its website; (3) Bruaner failed to plead fraud with particularity; and (4) Bruaner failed to state a claim for unjust enrichment.

Primary Jurisdiction. A court may stay a proceeding if the matters raised in the case are within the primary jurisdiction of the FDA. MP argued that Bruaner was asking the court to: (1) “usurp FDA authority” because his claims were premised on the results of test that did not conform to the FDA’s approved method; and (2) impose a different standard on MP than required by the FDA. The court disagreed. It determined that Bruaner’s claims were premised on his assertion that MP was making a promise about the content of the product that was untrue and that determining whether labeling and advertising are false or deceptive under consumer protection laws is not an issue outside the conventional experience of judges.

The court noted MP’s argument that the FDA’s adoption of standard testing methods for determining protect content signaled an FDA conclusion that it had authority over all such questions. However, the court determined that this argument missed the point because Bruaner was not asking the court to opine over the technicalities of testing protein content in food or supplements.

Preemption. MP argued that Bruaner’s claims regarding the allegedly misleading statements were preempted because the labeling of protein content falls squarely within the statutes and regulations covered by the Nutritional Labeling and Education Act’s (NLEA) express preemption provision. The court, however, found that, although the amount of protein listed on a product’s label does fall within the NLEA expression preemption, Bruaner was not attempting to impose a method of calculation protein based on nonconforming FDA approved tests or that the amount of protein listed on the product’s label was inaccurate. Rather, Bruaner was alleging that MP’s conduct fraudulent or misleading because it told consumers that it did not stuff its protein when it actually did.

The court determined that remedying MP’s alleged violations would merely mean that MP could no longer make untrue statements about what it did or did not include in its protein content. Therefore, Bruaner’s claims regarding MP’s alleged misrepresentations on its packaging, and its advertising more generally, were not preempted.

The court did, however, find that MP’s claims regarding the protein powder ingredient list, as pleaded, were preempted because the challenged list of ingredients was a nutrient claim. The court noted Bruaner’s assertion that his allegation was not based on an approved test but on MP’s own FDA test. Therefore, Bruaner was granted leave to amend his complaint to clarify whether his claim was based on testing that followed FDA regulation.

Fraud Claim. The court determined that, with respect to MP’s labeling and advertising, Bruaner did not plead fraud with sufficient particularity because he did not provide the content of the labels, packaging, and advertisements upon which he allegedly relied. However, Bruaner did include specific content from MP’s website upon which he allegedly relied. The court, therefore, determined that Bruaner did adequately plead his fraud claim to the extent that he sought liability based on MP’s representations on its website.

Standing. MP argued that Bruaner lacked standing to assert claims based on MP’s website because Bruaner purchased the protein powder in January 2014 and the representation, with respect to the protein powder, did not appear on MP’s website until June 2015. The court, however, noted that at the motion to dismiss stage, all factual allegations contained in a complaint must be accepted as true. Consequently, MP’s assertion that Bruaner could not have relied on the representation on its website was not something that the court could consider.

Leave to Amend. The court determined that Bruaner’s claims based on non-website advertising, marketing, and packaging could not be saved through amendment and, therefore, dismissed these claims with prejudice. The court, however, did grant Bruaner an opportunity to amend his allegations with respect testing that formed the basis for his ingredients list claim because it had not previously addressed the merits of MP’s preemption arguments.

The case is No. cv 14-8869 FMO (AGRx)

Attorneys: Elie Ghodsizadeh (Law Offices of Jonathan J. Delshad) for Jake Bruaner. Kathy J. Huang (Reed Smith LLP) for MusclePharm Corp.

Companies: MusclePharm Corp.

Cases: Advertising StateUnfairTradePractices CaliforniaNews