Metabolife Intern., Inc. v. Wornick, Civ. 99-1095-R.

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Citation72 F.Supp.2d 1160
Docket NumberNo. Civ. 99-1095-R.,Civ. 99-1095-R.
PartiesMETABOLIFE INTERNATIONAL, INC., Plaintiff, v. Susan WORNICK, George Blackburn, and Hearst-Argyle Television, Inc., Defendants.
Decision Date17 November 1999

Michael L. Converse, Akin Gump Strauss Hauer and Feld LLP, Washington, DC, Stephen A. Mansfield, Akin Gump Strauss Hauer and Feld, Los Angeles, CA, for Plaintiff.

Michael J. Weaver, Latham and Watkins, San Diego, CA, Steven J. Comen, Avani S. Kherdekar, Goodwin Procter and Hoar, Boston, MA, for Defendants Susan Wornick, Hearst Argyle Television, Inc.

Gregory D. Roper, Luce Forward Hamilton and Scripps, San Diego, CA, fir Defendant George Blackburn.


RHOADES, District Judge.

I. Overview

Plaintiff Metabolife International, Inc. ("Metabolife") claims that, when Defendants made statements as part of a television news broadcast addressing the safety of Plaintiffs product, Metabolife 356, they committed defamation, slander, trade libel, and intentional and negligent interference with prospective economic advantage. Responding to these allegations, Defendants have filed motions (1) to dismiss the complaint under California Code of Civil Procedure § 425.16 (the "anti-SLAPP statute"), (2) to dismiss for lack of personal jurisdiction, and (3) to dismiss for improper venue or, alternatively to transfer venue. At Defendants' requests, this order addresses only the motions to dismiss under California's anti-SLAPP statute. For the reasons set forth herein, the Court grants Defendants' anti-SLAPP motions and strikes Metabolife's complaint in its entirety.

II. Background

Metabolife is a California corporation that manufactures and distributes herbal dietary supplements. The company's primary product is "Metabolife 356," a dietary supplement designed to promote weight loss and boost energy. Metabolife 356 is "the best selling dietary supplement for weight loss in the United States." (Compl. ¶ 8.) While Metabolife's workforce is based in San Diego, California, Metabolife sells its products through independent distributors which operate retail stands in shopping centers throughout the United States.

The primary active ingredient in Metabolife 356 is the Chinese herbal supplement ma huang, a naturally-occurring form of the substance ephedrine. Because the Food and Drug Administration ("FDA") considers ma huang to be a food, not a drug, Metabolife can sell its product without undergoing the FDA's rigorous "new drug" approval process. See 21 U.S.C. § 321 (1999) (defining "food," "drug," and "dietary supplement," which includes "an herb or other botanical"); 21 U.S.C. § 355 (establishing the "new drug" application process). Nonetheless, concerns about the safety of dietary supplements containing ephedrine have animated recent debates in government. For example, in 1997, the FDA proposed a rule establishing a dosage regimen and labeling requirements for dietary supplements containing ephedrine alkaloids, like ma huang. See 62 Fed.Reg. 30678 (1997); Unites States General Accounting Office, Dietary Supplements: Uncertainties in Analyses Underlying the FDA's Proposed Rules on Ephedrine Alkaloids 1 (July 1999) ["Uncertainties"]; see also Massachusetts Dept. Of Public Health, DPH Issues Advisory on Herbal Dietary Supplements Containing Ephedra (Aug. 2, 1996). The FDA's proposed rule responds to over 800 Adverse Event Reports ("AERs") linking ingestion of ephedrine-based diet pills to serious health effects, including stroke and death. See Uncertainties, at 5. In response to these concerns, the media has produced numerous broadcasts and articles on the safety of ephedrine-based diet pills. See, e.g., Charles Babcock, Stimulant Propels Diet Empire: Herbal Coalition Fights FDA's Proposed Safety Regulation, Wash. Post, May 24, 1999, at A1; Claudie Kalb, Weighing the Health Risks: Do diet pills like Metabolife work? And are they safe?, Newsweek, Oct. 18, 1999, at 59. While no regulations currently exist, the debate rages on.

Metabolife has sued Defendants for their public contributions to this debate. Defendant Hearst-Argyle Television, Inc. ("WCVB") owns numerous television and radio stations across the nation, including WCVB-TV, a local television station in Boston, Massachusetts. From May 11 to May 13, 1999, WCVB broadcast a three-part news report (the "broadcasts") on the safety of Plaintiffs product, Metabolife 356. The broadcasts marked the culmination of a "five-month investigation" by Defendant Wornick, a WCVB reporter and presented a negative perspective on the health risks of Metabolife 356 use. The broadcasts include narration by Wornick and footage from several interviews, including one with Defendant Blackburn, a leading authority in obesity research.

After the broadcasts aired, Metabolife began a campaign against the onslaught of negative media attention. Metabolife immediately bought a full page ad refuting the broadcasts in the May 15, 1999 addition of the Saturday Boston Globe. The ad concludes "We will see Ms. Wornick and WCVB-TV in court." (Def. Blackburn's R. Ex. B.) The company also wrote letters to media companies designed to deter similar broadcasts on the safety concerns surrounding Metabolife 356. (Janis Decl.Exs. 8-10.) Finally, Metabolife filed the present action, seeking damages based on numerous statements and alleged defamatory implications arising from the broadcasts. The complaint alleges causes of action for defamation, slander, trade libel, and intentional and negligent interference with prospective economic advantage. For convenience of presentation, the Court lists the alleged statements and defamatory implications before addressing each in turn:

Alleged Defamatory Statements

1. Defendant Wornick: "Every expert we asked said Metabolife is not safe because of its main ingredient, ma huang."
2. Defendant Blackburn: "You can die from taking this product."
3. Anchor: "Will the legislature here be considering just restricting, or banning, Metabolife?"

Defendant Wornick: "I think that is what they are going to do eventually. Health officials have told us that they would like to regulate very tightly how it is sold."

4. Wornick: "Remember that ad calling Metabolife clinically tested for safety? Metabolife was tested at Vanderbilt University, but only for two weeks and, according to their attorney, not for safety. Vanderbilt officials have ordered Metabolife to stop making that claim."

5. Wornick: "Does this company have any credibility at all, doctor?"

Blackburn: "None."

6. "The substance ephedrine has long had the attention of law enforcement, because it's also the main ingredient in the illegal drug methamphetamine. On the streets they call it meth, or speed."

7. Wornick: "[Ellis] started a vitamin company that later became Metabolife — makers of diet pills with ephedrine. Again, the same controlled substance found in methamphetamine."

8. Wornick: "[Interviewee] thinks she reacted to ephedrine, a powerful heart stimulant that's the main ingredient in the illegal drug methamphetamine, known on the streets as speed."

Defamatory Implications1
1. Implications from statements (1), (2), and (3):

(a) Taking Metabolife is deadly;

(b) The consensus in the medical community is that taking Metabolife is deadly; and

(c) Taking Metabolife as directed poses a risk of death to the average person that is substantially greater than that posed by other over-the-counter legal products.

2. Implications from statements (4) and (5):

(d) Metabolife knows that the product it makes and sells to the public is deadly;

(e) There are no scientific studies concluding that Metabolife 356 is a safe product, and no scientific support for the assertion that Metabolife 356 is a safe product;

(f) Metabolife misrepresents to the public that scientific studies have concluded that Metabolife 356 is a safe product, and that there is scientific support for the assertion that Metabolife 356 is a safe product;

(g) Metabolife 356 has not been tested for safety; and

(h) Metabolife misrepresents to the public that Metabolife 356 has been tested for safety.

3. Implications from (6), (7), and (8):

(I) The main ingredient of Metabolife 356 is an illegal controlled substance;

(j) The main ingredient of Metabolife 356 is identical to the main ingredient in the illegal drug methamphetamine, or "speed"; and

(k) Metabolife intentionally and deceitfully passes off as a dietary supplement a product that is essentially no different than the illegal drug methamphetamine.

On June 21, 1999, Defendants filed motions to dismiss under California's anti-SLAPP statute, Cal.Civ.Proc.Code § 425.16. Pursuant to that statute, the Court stayed all discovery upon notice of the motion to dismiss. By order dated September 24, 1999, the Court ordered limited discovery to enable Metabolife to meet its burden of opposing Defendants' motions, but later stayed all discovery pending the present order. As explained below, the Court does not address issues for which Metabolife should be granted discovery prior to a decision.

III. Discussion

Defendants have moved to dismiss Plaintiffs claims pursuant to California's anti-SLAPP statute.2 "SLAPP" stands for "strategic lawsuit against public participation," and the statute provides a mechanism for a defendant to strike civil actions brought primarily to chill the exercise of free speech. See Cal.Civ.Proc.Code § 425.16(b)(1). The California Legislature passed the statute recognizing "the public interest to encourage continued participation in matters of public significance ... and [finding] that this participation should not be chilled through abuse of the judicial process." 5 Witkin, California Procedure, § 962, at 422 (4th ed.1997).

A defendant in a civil action may move under the anti-SLAPP statute to strike any cause of action based on his "act in furtherance of [the] right to petition or free...

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