Durnford v. Musclepharm Corp.

• Decision Date: 12 October 2018
• Docket Number: No. 16-15374,16-15374
• Citation: 907 F.3d 595
• Parties: Tucker DURNFORD, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. MUSCLEPHARM CORP., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

907 F.3d 595

Tucker DURNFORD, individually and on behalf of all others similarly situated, Plaintiff-Appellant,

v.MUSCLEPHARM CORP., Defendant-Appellee.

No. 16-15374

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2017 San Francisco, California

Filed October 12, 2018

Matt J. Malone (argued), Susan F. Brown, and Michael F. Ram, Ram Olson Cereghino & Kopczynski, San Francisco, California, for Plaintiff-Appellant.

Michael J. Suffern (argued) and Linda E. Maichl, Ulmer & Berne LLP, Cincinnati, Ohio, for Defendant-Appellee.

Before: Marsha S. Berzon and Michelle T. Friedland, Circuit Judges, and William K. Sessions III,^* District Judge.

BERZON, Circuit Judge:

Tucker Durnford brought California consumer claims against MusclePharm Corporation, a manufacturer of nutritional supplements

, for making false or misleading statements about the protein in one of its products. The district court dismissed Durnford's action as preempted by the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301 – 399i, reasoning that any declarations of protein content anywhere on a product label could not be false or misleading if the listed amount of protein reflected measurements made in accordance with federal regulations concerning the federally mandated nutrition panel. We disagree. As here relevant, the FDCA and its implementing regulations concern only the calculation and disclosure of protein amounts . They say nothing about the source or composition of protein, factors which underlie one of Durnford's several theories of consumer deception. Durnford's claims are therefore not preempted to the extent they arise under that theory.

I

MusclePharm is a Nevada corporation that produces a line of nutritional supplements , including the "Arnold Schwarzenegger Series Iron Mass" supplement ("the Supplement") here at issue. Durnford is a California citizen who purchased the Supplement from a sports nutrition retailer in 2014.

The Supplement is marketed as a muscle-building or weight-gain product, with a focus on its "revolutionary 5-stage mass delivery system." According to the Supplement's label,¹ this "system" consists of "advanced protein technology, elite complex carbs, healthy fats, cutting-edge performance ingredients and a balanced digestive blend."

The label describes the "stages" of the Supplement's "system" in some detail. In particular, the second stage is described as "Muscle plasma protein technology: 40g of a potent blend of hydrolyzed beef protein and lactoferrin protein." The fourth stage is described as "Performance growth & muscle volumizer: Creatine and BCAA nitrates help promote muscular strength, size and endurance."

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The nutrition panel at the back of the label also reflects the "five-stage system." For example, in listing the Supplement's ingredients, the front of the label divides ingredients according to the "five stages." The nutrition panel then repeats the five stages in the same order they appear on the front of the label, and repeats the same jargon in describing them.

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As should be apparent, the second group of ingredients listed on the nutrition panel corresponds to the second stage of the Supplement's "system." This group of ingredients is described as the "Muscle Plasma Protein Matrix," consisting of "Hydrolyzed Beef Protein, Lactoferrin." The fourth group of ingredients listed on the nutrition panel corresponds to the fourth stage of the Supplement's system. This group of ingredients is described as the "Performance Growth & Muscle Volumizer," consisting of "Creatine Monohydrate, L-Glycine, BCAA Nitrates (Leucine, Iso-Leucine, Valine) ... , D-Ribose." The nutrition panel states that a single serving of 95 grams of the Supplement contains 40 grams of protein, or 72% of the recommended daily value.

In January 2015, Durnford brought an action alleging that MusclePharm had engaged in "protein spiking" or "nitrogen spiking" — the practice of inflating measurements of a supplement's protein content using non-protein substances — thereby rendering the Supplement falsely or misleadingly labeled.² Specifically, Durnford alleged that MusclePharm used creatine monohydrate and free-form amino acids (l-glycine, leucine, iso-leucine, and valine) to inflate protein figures. These are the substances that appear at stage four of the Supplement's "system." Durnford also alleged that an independent study of the Supplement demonstrated that its true protein value was not 40 grams per serving, but 19.4 grams per serving.

Durnford brought claims under California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 – 17210 ; False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500 – 17509 ; and Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750 – 1784 ; and for breach of express warranty. The express warranty claim was premised on the theory that the Supplement's "labeling, marketing and advertising constitute express warranties and became part of the basis of [the] bargain" — a bargain struck, according to the complaint, "at the time [consumers] purchased the Product."

Durnford also alleged that, at some point, an individual "tweeted at" MusclePharm's official Twitter account to ask about the truth behind product reviews accusing MusclePharm of nitrogen spiking. MusclePharm responded via Twitter: "Those [reviews] are fake then. We don’t do anything like that. All products legit and scientifically backed[.]" The individual who tweeted at MusclePharm identified himself on Twitter as "Jacob Henderson." The complaint did not explain who Jacob Henderson was, what relationship he had to Durnford or to this case, when the Twitter interaction took place, or whether Durnford was aware of it.

Durnford did not explain his reasons for purchasing the Supplement. For example, he did not allege that he purchased the product intending to gain weight or add muscle, the likely reason for most purchases of the product. He did state, however, that he "would not have purchased the Supplement had [he] known the true nature of the protein content." And he alleged that he "purchased the [Supplement] in reliance on [MusclePharm's] labeling and marketing claims."

MusclePharm moved to dismiss the complaint on preemption grounds, for failure to plead reliance adequately, and for failure to plead fraud with particularity. In granting the motion to dismiss, the district court divided Durnford's four legal claims into three theories of misrepresentation, each tied to one of MusclePharm's "claims" about its product. The "Protein Content Claim" referred to the theory that Durnford was misled by the 40-gram figure on the Supplement's nutrition panel, as independent testing allegedly revealed that figure to be heavily influenced by nitrogen-rich non -protein substances such as free-form amino acids. The "Protein Composition Claim" referred to the theory that Durnford was misled by the label's suggestion that the product contained 40 grams of protein derived entirely from hydrolyzed beef protein and lactoferrin rather than nitrogen-spiking agents. The "Nitrogen Spiking Claim" referred to the theory that Durnford was misled by the statement MusclePharm made on its Twitter account in response to a direct question about nitrogen spiking.

The district court ruled for MusclePharm on preemption grounds with respect to the "Protein Content Claim." Specifically, the court noted that Food and Drug Administration ("FDA") regulations allow a manufacturer to use nitrogen content as a proxy for protein content, thus permitting the practice of nitrogen spiking.³ As the FDCA expressly preempts state-law requirements that are "not identical to" those in the FDCA itself, 21 U.S.C. § 343-1(a)(5), the district court concluded that even if the label might be considered misleading, California consumer law could not be used to create liability for an FDA-compliant measurement.

The district court ruled for MusclePharm on the "Protein Composition Claim" on preemption grounds as well, but on narrower reasoning. The court accepted the theory that MusclePharm's label falsely or misleadingly suggested that the Supplement contained 40 grams of protein derived entirely from hydrolyzed beef protein and lactoferrin and therefore not from nitrogen spiking. The court also accepted that a misbranding theory of that kind went beyond a claim based purely on the FDA's approved methods of calculating protein content. Nonetheless, the district court concluded that Durnford's claims, "as currently pled, are preempted," as Durnford did not allege that his independent study demonstrating a lack of true protein "conformed to the [FDA] requirements" for measuring protein content.

Finally, the district court ruled for MusclePharm on its "Nitrogen Spiking Claim" for failure to plead reliance adequately, a problem the court described as a lack of statutory standing under California's consumer protection laws. The court noted that it could be "reasonable to presume that consumers read and rely on product labels when purchasing a supplement." But the court was unable to draw such an inference regarding the comment made on Twitter.

The district court dismissed the complaint without prejudice to repleading to cure the preemption and reliance problems. Durnford allowed the period for amendment to lapse, and the court entered judgment. This appeal followed.

II

We begin with a review of federal preemption under the relevant provision of the FDCA. The FDCA provides, in relevant part, that

no State ... may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce ... (4) any requirement for nutrition labeling of food that is not identical to the requirement of section 343(q) of this title ... or, (5) any requirement respecting any claim ... made in the label or labeling of food that is not identical to the requirement of section 343(r) of this title.⁴

21 U.S.C. § 343-1(a) (emphases added).⁵ Section 343(q) addresses the...