Antitrust Law Daily Wrap Up, ADVERTISING—NDCal: Nutritional Supplement Purchaser Fails to Plead California False Advertising Claims over Immune System Benefit Statements, (Feb 4, 2013)

By Tobias J. Gillett, J.D., LLM.

A purchaser of nutritional supplements could not state false advertising claims under California law against Pfizer, Inc. over allegedly misleading promotional statements regarding the supplement’s ability to benefit a consumer’s immune system, the federal district court in San Francisco has ruled. The purchaser failed to provide sufficient factual allegations to support her claims, and her claims were not pled with sufficient particularity to satisfy the pleading standard of Federal Rule of Civil Procedure 9(b), it was decided (Arroyo v. Pfizer, Inc., January 31, 2013, Chen, E.).

According to the purchaser’s complaint, Pfizer advertises that its Pro Nutrients Probiotic nutritional supplement “supports healthy immune function.” The purchaser alleged that Pfizer did not have scientific evidence to support this statement. The purchaser also claimed that she bought the product in the belief that “it would enhance her immune function,” but that she “stopped using Pro Nutrients because it failed to support her healthy immune function.”

The purchaser brought a putative class action complaint against Pfizer, alleging that “Pro Nutrients does not support healthy immune function as advertised,” and therefore constituted false advertising in violation of California’s Unfair Competition Law (UCL), California’s False Advertising Law (FAL), and California’s Consumers Legal Remedies Act (CLRA), as well as a breach of an express warranty.

The court concluded that the purchaser had not alleged sufficient factual support for her claims under the federal pleading standards. Although the purchaser had alleged that Pfizer’s claim that its supplement “supports healthy immune function” was “false and/or misleading,” the purchaser had not alleged why she believed Pfizer’s claim to be false. She provided no “underlying factual premise that would justify her factual conclusion” that the supplement did not deliver the promised benefits, or her legal conclusion that Pfizer’s claim was “false and/or misleading” under California law. Although these allegations might meet the pleading standards of the California state courts, they did not satisfy the pleading standard of the federal courts, in the court’s view.

Moreover, the purchaser’s references to statements from a physician regarding the veracity of Pfizer’s claims did not alter this conclusion. Statements such as “we cannot significantly, and in a healthy manner, boost our immune system artificially” did not “address Pfizer’s product specifically,” and the qualifying terms “significantly,” “in a healthy manner,” and “artificially” did not “establish the falsity of Pfizer’s representation.” The physician’s statements were either conclusory or did not address the Pro Nutrients Probiotic product specifically, in the court’s view.

Furthermore, the court concluded that the purchaser’s UCL, FAL, and CLRA claims all “sound[ed] in fraud,” and hence had to satisfy the heightened pleading standard mandated by Federal Rule of Civil Procedure 9(b) for fraud claims. Although California state courts might not require particularized pleading for UCL, FAL, and CLRA claims, the federal courts required such pleading for all fraud claims, whether or not they were based on state law causes of action, the court noted.

The court observed that the Ninth Circuit did draw a distinction between claims where the plaintiff relies on a “unified course of fraudulent conduct” as the basis for the claim, and claims where the plaintiff alleges “some fraudulent and some non-fraudulent conduct.” A plaintiff who alleged a “unified course of fraudulent conduct” would have to satisfy the Rule 9(b) standard with regard to the entire claim, while a plaintiff who alleged “some fraudulent and some non-fraudulent conduct” would only have to satisfy the standard with respect to the allegations of fraudulent conduct.

Here, the purchaser’s allegations that Pfizer “misrepresent[ed] that the product supports a healthy immune function when it allegedly does not” with the intent that consumers would rely on that misrepresentation in choosing to purchase the product amounted to claims of “a unified course of fraudulent conduct.” As the purchaser had not pled her claims with particularity, her claims did not satisfy the Rule 9(b) standard. The court therefore dismissed her claims, with leave to amend them.

The case is No. C-12-4030 EMC.

Attorneys: Benjamin Michael Lopatin (Law Offices of Howard W. Rubinstein, P.A.) for Joanne Arroyo. Melissa D. Ingalls (Kirkland & Ellis LLP) for Pfizer, Inc.

Companies: Pfizer, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews