Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Cal.: Consumer proceeds with IsoFlex false, misleading labeling claims, (Dec 28, 2015)

By Greg Hammond, J.D.

A distribution company could not obtain dismissal of false and misleading labeling claims with regard to the dietary supplement Allmax Nutrition IsoFlex. In partially denying the distribution company’s motion to dismiss, the federal district court in Fresno, California, concluded that the consumer’s California Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law claims were not preempted by the federal Food, Drug, and Cosmetic Act (FDC Act) and FDA regulations (Smith v. Allmax Nutrition, Inc., December 24, 2015, Boone, S.).

Consumer Todd Smith made two principal allegations against IsoFlex manufacturer Allmax Nutrition, Inc. and distributor HBS International Corp.—the IsoFlex label is misleading because the product does not actually contain certain ingredients listed on the label and it makes false claims of the efficacy of glutamine by stating “Free-Form L-Glutamine Designed to improve recovery and immune support.” Allmax and HBS moved to dismiss, which was partially granted for lack of personal jurisdiction with regard to Allmax.

Missing ingredient claims. The court first concluded that the consumer’s missing ingredient claim—that the IsoFlex label misstates the amount of the nutrients L-arginine, L-glutamine, and L-taurine—was not preempted. Although the consumer conceded that his testing of the supplement was not done in accordance with the testing requirements of section 101.9(g)(2) of the FDC Act, he claimed that none of the ingredients were present in the sample he tested. The court determined that it could plausibly infer that tests conducted in compliance with the 12 sample methodology of section 101.9 would support the consumer’s allegations that the product is mislabeled. In addition, the consumer did not plead a different methodology that would impose a different or more burdensome requirement upon HBS.

Efficacy claims. Lastly, the efficacy claims concerning glutamine were also not preempted. The consumer identified 12 studies that demonstrated the statement—that glutamine improves recovery and immunity support—was false and misleading, which was sufficient to state a claim. Further, whether there is, in fact, adequate support for the claims is an issue that should be decided in an adjudication on the merits, rather than on a motion to dismiss, the court concluded.

The case is No. 1:15-cv-00744-SAB.

Attorneys: Joseph J. Siprut (Siprut PC) for Todd Smith. Joshua Hawkes Lerner (Durie Tangri LLP) for Allmax Nutrition, Inc. and HBS International Corp.

Companies: Allmax Nutrition, Inc.; HBS International Corp.

Cases: Advertising StateUnfairTradePractices CaliforniaNews