Antitrust Law Daily Wrap Up, ADVERTISING—D. Md.: Claims of deceptive advertising for glucosamine and chondroitin supplements dismissed, (Jun 23, 2014)

By Edward L. Puzzo, J.D.

Allegations that glucosamine and chondroitin supplements were ineffective and that a manufacturer's claims to the contrary constituted deceptive advertising were dismissed, because the plaintiffs failed to challenge the validity of defendant's expert opinion to the contrary, the federal district court in Baltimore has ruled (In Re: GNC Corp. Triflex Products Marketing and Sales Practices Litigation (No. II)), June 20, 2014, Motz, F.).

In this consolidated class action, plaintiffs alleged that advertising for certain dietary supplements manufactured by General Nutrition Corporation (GNC) were false and deceptive and violated various state consumer protection statutes.

Advertising and labeling for glucosamine and chondroitin supplements, sold by GNC under its TriFlex brand name and by Rite-Aid Corporation under its own brand name, disclaimed any ability to "diagnose, treat, cure or prevent any disease," but stated that the supplements promoted "joint mobility and flexibility" and protected joints from "the wear and tear of exercise." Plaintiffs alleged that the "vast weight" of the evidence from researchers and clinical studies showed that glucosamine and chondroitin had little or no effect on joint discomfort, osteoarthritis, or deteriorating cartilage, thus making the labeling deceptive.

Battle of the experts. The court explained that, in order for the advertisements of defendants to be false or deceptive, to constitute an unfair trade practice, or to violate the relevant consumer protection laws, plaintiffs had to rely on their allegation that “experts in the field” consider the studies to be a valid proxy for measuring the effectiveness of glucosomine and chondroitin. The experts cited in plaintiffs' allegations referred only to their own professional opinions. Notably, the plaintiffs' complaint did not allege that the clinical trial relied upon by GNC in support of the products' effectiveness did not exist, or existed but did not support GNC's representations, or existed but were not conducted in an appropriately scientific manner. Consequently, the court was left with a "battle of the experts."

The mere existence of a disagreement among experts as to the efficacy of glucosomine and chondroitin on joint and cartilage health is not sufficient to establish that GNC's advertisements violate state consumer protection laws. If experts exist who support what GNC stated in their advertising, the advertising is not false and misleading. Consequently, plaintiffs did not allege sufficient facts to state a viable claim and their complaint must be dismissed. However, the court granted plaintiffs leave to file an amended complaint.

The case is Civil Action No. MDL No. 14-2491-JFM.

Attorneys: Reginald V. Terrell (Terrell Law Group) for Yvonne Brown. Courtney South Schorr (McGuireWoods LLP) for GNC Corp.

Companies: GNC Corp.

Cases: Advertising ConsumerProtection MarylandNews