Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Cal.: Consumer stated false ad claims against testosterone supplement maker, (Sep 19, 2014)

By Greg Hammond, J.D.

A consumer of the dietary supplement Infinite Labs Pro Tribulus stated false advertising claims against the supplement’s manufacturer for misrepresenting that the product supports natural testosterone production, among other representations. In partially denying the manufacturer’s motion to dismiss, the federal district court in San Diego determined that the consumer adequately alleged his California Unfair Competition Law (UCL), Consumer Legal Remedies Act (CLRA), and False Advertising Law (FAL) fraud-based claims with particularity (Dabish v. Infinitelabs, LLC, September 17, 2014, Moskowitz, B.).

Background. Darick Dabish purchased Infinite Labs Pro Tribulus from Bodybuilding.com, allegedly based on the label’s representations that the supplement would support natural testosterone production, provide advanced LH production, act as an athlete’s performance aid, and naturally increase lean muscle. However, Dabish filed a class action against the manufacturer, Infinitelabs, LLC, claiming that the representations on the product’s labels were false and misleading because: (1) there is no competent and reliable scientific evidence supporting the claims; (2) there is competent and reliable scientific evidence actually refuting the company’s claims; and (3) the supplement does not provide consumers with the claimed benefits. Infinitelabs moved to dismiss, arguing that Dabish failed to state sufficient claims under the CLRA, UCL, and FAL; failed to plead fraud with particularity; and that he lacks Article III standing to request injunctive relief.

Sufficiency of claims. In support of its motion to dismiss, Infinitelabs argued that Dabish failed to allege a claim of false or misleading labels, and only states a "lack of substantiation" claim. The court disagreed, noting that Dabish sufficiently alleged that various advertisements were false; scientific evidence directly refutes the company’s representations; Infinitelabs ignored the scientific studies regarding the active ingredient’s efficacy; and details of seven studies refuting Infinitelabs’ representations. The court consequently concluded that the claims do not rely on a lack of substantiation theory.

Infinitelabs also argued that Dabish mischaracterized the labeling on the product by stating the active ingredient would "enhance or increase testosterone production" rather than "supports natural testosterone production." The court noted, however, that Dabish correctly represented the allegedly misleading language when he asserted that Infinitelabs made false and misleading claims regarding the ingredient’s ability to "enhance or increase muscle mass." Consequently, the court determined that, even though Dabish occasionally misused the phrase "enhance or increase testosterone," he sufficiently pleaded the labeling contains a misrepresentation.

Particularity. In its second argument, Infinitelabs claimed that Dabish failed to plead his fraud-based claims with requisite particularity. Because Dabish’s claims sounded in fraud, the court first determined, the claims were required to be "specific enough to give defendants notice of the particular misconduct…so that they can defend against the charge and not just deny that they have done anything wrong." The court concluded that Dabish pleaded his fraud-based claims with sufficient factual detail, as he alleged the who, what, when, where, and how of the misconduct.

Injunctive relief. To establish standing under Article III, Dabish needed to show: (1) he suffered an injury in fact; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable decision. Further, to establish standing for injunctive relief, Dabish needed to demonstrate he has suffered or is threatened to suffer concrete and particularized legal harm, and a sufficient likelihood that he will again be wronged in a similar way. The court determined that because Dabish has no intention of buying the product again in the future, due to the allegedly lack of efficacy, he failed to establish a likelihood of future injury. Consequently, Infinitelabs’ motion to dismiss was partially granted with regard to the injunctive relief claim, but denied with regard to the remaining claims.

The case number is 13-cv-2048 BTM (DHB).

Attorneys: Jonathan Shub (Seeger Weiss LLP) for Darick Dabish. Eric Anvari for Infinitelabs, LLC.

Companies: Infinitelabs, LLC

Cases: Advertising CaliforniaNews