Metague v. Woodbolt Distribution, LLC
| Decision Date | 16 June 2021 |
| Docket Number | Civil Action No. 8:20-cv-02186-PX |
| Parties | DANIEL METAGUE, on behalf of himself and all others similarly situated, Plaintiff, v. WOODBOLT DISTRIBUTION, LLC, d/b/a NUTRABOLT Defendant. |
| Court | U.S. District Court — District of Maryland |
Pending before the Court is this consumer protection class action suit is Defendant Woodbolt Distribution, LLC's Motion to Dismiss. ECF No. 19. The motion is fully briefed and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the motion is granted in part and denied in part.
Defendant Woodbolt Distributions, LLC, ("Woodbolt") manufactures and sells the "XTEND Energy" ("XTEND") line of nutritional powders in a variety of flavors. ECF No. 16 ¶ 2. On its website and on XTEND's package labeling, Woodbolt prominently proclaims that XTEND contains "0 calories" per serving. Id. ¶ 20. The veracity of this pronouncement, and Woodbolt's compliance with United States Food and Drug Administration ("FDA") regulations related to such labeling, are at the center of this lawsuit.
XTEND is a pre-workout energy supplement that promotes "muscle recovery." ECF No. 16 ¶ 20. FDA regulations governing the content of labeling for food and dietary supplements cover products such as XTEND. 21 C.F.R. § 101.36 (supplements); id. § 101.9 (food). The XTEND label describes the supplement as "0 calories, 0 carb and 0 sugar" per serving. ECF No. 16 ¶ 20. The label also highlights that it contains "7G BCAA" per serving. Id. BCAA is shorthand for "branched-chain amino acids," which are organic compounds that combine to form proteins, but which independently may be added to food and dietary supplements for certain nutritional benefits. Cf. 21 C.F.R. § 172.320. Per the FDA, branched-chain amino acids must be individually listed on the product labeling and may not be represented as "protein." See id. § 101.36(b)(2)(i).
The FDA also regulates labeling of calorie content for products like XTEND. See id. § 101.9(c)(1). Generally, food products must include on the label the number of calories expressed to the nearest five-calorie increment when the product contains a total of fifty calories per serving, and to the nearest ten-calorie increment when a product contains a higher per-serving total. Id. Only products that contain fewer than five calories per serving may state that the caloric value is "zero." Id. Consequently, terms such as "calorie free," "zero calories," or their equivalent, may be used only if the product actually contains fewer than five calories per labeled serving. Id.; see also id. § 101.60(a)(4). Where a product's actual nutritional content exceeds that listed on its label by more than 20%, the product "shall be deemed to be misbranded." Id. § 101.9(g)(5). Total calories per serving must be calculated using one of six specific FDA-approved methods.1
The FDA buttresses its nutritional labeling regulations with several publications to aid the industry in compliance. See Industry Resources on the Changes to the Nutrition Facts Label, U.S. Food & Drug Admin., https://www.fda.gov/food/food-labeling-nutrition/industry-resources-changes-nutrition-facts-label (Jan. 27, 2021).2 Pertinent to XTEND, the FDA specifically illustrates the label required for dietary supplements of amino acids, making clear that the label must list the amino acids present in the supplement alongside other ingredients, as well as the calories per serving. See High-Resolution Examples of Different Supplement Facts Labels in the New Format, U.S. Food & Drug Admin., https://www.fda.gov/media/99158/download (last visited June 15, 2021) at p. 8; ECF No. 16 ¶ 8.
In August 2018, Plaintiff Daniel Metague, a Maryland resident living in Montgomery County, purchased XTEND through Amazon.com. ECF No. 16 ¶ 11. He was attracted to the product as a "0 calorie" nutritional powder to assist him in achieving certain weight loss goals and addressing his health concerns. Id. ¶¶ 9, 11, 16, 24. Independent testing, however, revealed that XTEND contained roughly forty-two calories per serving, well in excess of the five-calorie cutoff applicable to those products labeled as "zero calories" per serving. Id. ¶ 5. Tests using each of the five FDA methods applicable to measuring caloric content of XTEND also revealed that XTEND exceeds the value represented on the product label by greater than 20%, thus rendering it "misbranded." Id. Woodbolt's own internal emails, reports, analyses, and assessments, corroborate these findings and further demonstrate that Woodbolt has known forsome time the true caloric content of XTEND to be substantially higher than as labeled. Id. ¶¶ 38, 65. Metague maintains that had he known the truth about XTEND's caloric content, he would not have purchased it. Id. ¶¶ 105-06.
On July 28, 2020, Metague filed the original Complaint on behalf of himself and all other similarly situated consumers in the United States, alleging that Woodbolt committed common law breach of implied warranty, fraud, unjust enrichment, as well as claims under the Maryland Consumer Protection Act, Md. Code., Comm. L. § 13-101 et seq. ECF No. 1. The Complaint also averred violations of the unfair and deceptive trade practice laws for 32 other states and the District of Columbia and sought to enjoin Woodbolt from continuing to mislabel and falsely advertise XTEND as a "zero calorie" product. Id. ¶¶ 58-61.
Four days after Woodbolt had been served with the Complaint, the Natural Products Association ("NPA") submitted a "citizen petition" to the FDA ("the Petition"). The FDA's citizen petition process permits individuals and organizations to request changes to FDA policies and regulations. Anyone may submit a citizen petition, and in turn, the FDA must either approve or deny the petition's request, or state that agency review will be delayed in light of other FDA priorities. See 21 C.F.R. § 10.30.
At the time the NPA filed the Petition, the Chief Legal Officer and General Counsel of Woodbolt also sat on NPA's Board of Directors. See ECF No. 22 at 13. The NPA requested that the FDA promulgate new regulations concerning labeling of branched-chain amino acids and caloric content to address a supposed "incongruity" in the regulations and "in light of increasing private litigation[.]" NPA, Re: Citizen Petition Requesting FDA Amend Nutrition Facts and Supplement Facts Labeling Regulations Pertaining to Caloric, p. 2, Regulations.gov, https://beta.regulations.gov/document/FDA-2020-P-2134-0001. The Petition explained that thecurrent guidelines prevented products composed entirely of branched-chain amino acids from listing "protein" as a nutrient in the nutritional facts section of the product's label. According to NPA, this rule, combined with the requirement that product labels contain the supplement's caloric values, was likely to confuse savvy customers who would question the source of the calories if they did not see "protein" listed. Id. at p. 7. The Petition concluded by requesting that the FDA "revise the Nutrition Fact rules so that they allow for labels that contain [branched-chain amino acids] to do so without listing the caloric values for those ingredients," and issue guidance to the same effect.3 Id. at p. 8.
Thereafter, on December 14, 2020, Woodbolt moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). ECF No. 10. In response, Metague filed an Amended Complaint to supplement the facts and add a common law breach of express warranty claim. ECF No. 16.4 Woodbolt now moves to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). ECF No. 19.
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. See Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted). In reviewing a motion to dismiss under Rule 12(b)(6), the Court accepts "the well-pled allegations of the complaint as true," and construes all facts and reasonable inferences in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). A complaint's factual allegations "must be enough to raise a rightto relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). In other words, the complaint must set out facts that render the plaintiff's claims facially plausible or permit the reasonable inference that the defendant is liable for the alleged violations. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
If a complaint allegation sounds in fraud, it must meet the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See Haley v. Corcoran, 659 F. Supp. 2d 714, 721 (D. Md. 2009). The rule requires the plaintiff to "state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). To satisfy this standard, plaintiffs "must, at a minimum, describe the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (quotation marks and citation omitted). Fraud allegations that fail to comply with Rule 9(b) warrant dismissal under Rule 12(b)(6). See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999).
Woodbolt moves for dismissal on several grounds. The Court addresses Woodbolt's global challenges to the Amended Complaint before turning to those targeted at individual claims for relief.
Woodbolt argues that Metague's claims are expressly preempted by the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq. because the FDA possesses sole...
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