Nathan v. Vitamin Shoppe, Inc.
| Decision Date | 12 March 2019 |
| Docket Number | Case No.: 3:17-cv-01590-BEN-KSC |
| Parties | ANDREA NATHAN, on behalf of herself, all others similarly situated, Plaintiff, v. VITAMIN SHOPPE, INC., Defendant. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT
[Doc.12]
Defendant Vitamin Shoppe, Inc. moves to dismiss Plaintiff Andrea Nathan's First Amended Complaint. [Doc. 12.] For the reasons that follow, Defendant's motion is GRANTED IN PART AND DENIED IN PART.
On June 26, 2017, Plaintiff filed this action in the San Diego Superior Court, asserting individual and putative class state-law claims for violation of California's Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and for breach of express and implied warranties. On August 25, 2017, Defendant removed the action to this Court based on diversity jurisdiction. [Doc. 1.] On February 20, 2019, the Court granted without prejudice Defendant's motion to dismiss Plaintiff's Complaint, including granting leave to Plaintiff to amend her pleading. [Doc. 10.] Plaintiff then filed a First Amended Complaint ("FAC"), which Defendant now moves to dismiss. [Docs. 11, 12.]
According to Plaintiff's FAC, Defendant Vitamin Shoppe distributes, markets, and sells Garcinia Cambogia Extract1 (the "Product") nationwide, including in California. In February 2017, Plaintiff Andrea Nathan purchased a 180-caplet bottle of the Product from Defendant in San Diego, California for approximately $20. The Product's label provided promises of "Weight Management" and "Appetite Control," which led Plaintiff to believe "the Product was an effective dietary aid that would aid weight loss" and would help her to manage her weight and control her appetite. [Doc. 11 at ¶¶ 116-118.]
Plaintiff alleges "[t]he representations on the Product's label were and are false and misleading, and had the capacity, tendency, and likelihood to confuse or confound Plaintiff and other consumers acting reasonably (including the putative Class) because . . . the Product cannot deliver the purported benefits and is no more effective than a placebo." [Id. at ¶ 119.]
On a motion to dismiss under Rule 12(b)(6), the Court must accept the Complaint's allegations as true and construe all reasonable inferences in favor of the nonmoving party. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). To avoid dismissal, Plaintiff's Complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
In its previous Order dismissing Plaintiff's Complaint, the Court emphasized the distinction between the Product's actual promises of "Weight Management" and "Appetite Control" and the Product's alleged misrepresentations about weight loss. Specifically, the Court reasoned that "'Weight Management' suggests management or control of one's weight, whose upward or downward departure may differ depending on an individual person's goals, i.e., to gain, lose, or maintain one's weight." [Doc. 10 at p. 5.] Similarly, "'Appetite Control' indicates control of one's appetite, which may or may not ultimately result in weight-loss." [Doc. 10 at p. 5.] Meanwhile, "weight loss" indicates a decrease in one's weight. Because of these distinctions, the Court found Plaintiff's Complaint failed to state a claim because it equated the Product's promises of "Weight Management" and "Appetite Control" with promises of weight loss, an entirely different promise.
The Court additionally found Plaintiff's Complaint's reliance on only one study that actually addressed the representations at issue ("Weight Management" and "Appetite Control") did not state a claim of falsity or misrepresentation because of its qualifying language. [Doc. 10 at p. 5 ().]
In her First Amended Complaint ("FAC"), Plaintiff addresses both of the defects present in her original Complaint. First, she alleges throughout her Complaint that the Product additionally misrepresents its ability to help consumers control their appetites and manage their weights, which tracks the Product's promises of "Appetite Control" and "Weight Management." Second, she supports her FAC with citations to several additional scientific studies supporting her contention that the Product's claims are false or misleading, and she pleads additional allegations about those studies to provide context and clarify their results. Defendant again moves to dismiss the FAC, in whole or in part, on six separate grounds: (1) the FAC's CLRA, FAL, and UCL claims allege nothing more than noncognizable claims for "lack of substantiation"; (2) the FAC's CLRA, FAL, andUCL claims do not allege false or misleading misrepresentations; (3) the FAC's claims fail under the primary jurisdiction doctrine; (4) Plaintiff lacks standing to seek injunctive relief; (5) the FAC's fraud-based claims do not satisfy Rule 9(b); and (6) the FAC fails to state a claim for breach of an express or implied warranty. The Court addresses each argument in tum.
In essence, Plaintiff's claims under California's Unfair Competition Law ("UCL"), False Advertising Law ("FAL"), and Consumer Legal Remedies Act ("CLRA") are each premised on her contention that Defendant's Product does not provide weight management, appetite control, and/or weight loss benefits. As in its first motion to dismiss, Defendant again argues these claims must be dismissed because they are based entirely upon lack of substantiation allegations for which there is no private right of action. The Court does not agree.
The UCL prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code § 17200. The FAL makes it unlawful for a business to disseminate any statement "which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." Cal. Bus. & Prof. Code § 17500. The CLRA prohibits any "unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer." Cal. Civ. Code § 1770.
Private litigants may not bring suit under the UCL, FAL, or CLRA alleging only that advertising claims lack substantiation. See Nat'l Council Against Health Fraud, Inc. v. King Bio Pharm., Inc., 133 Cal. Rptr. 2d 207, 213 (Cal. App. Ct. 2003); Stanley v. Bayer Healthcare LLC, 2012 WL 1132920, at * 3 (S.D. Cal. 2012). That right is reserved for "the Director of Consumer Affairs, the Attorney General, any city attorney, or any district attorney." Cal. Bus. & Prof. Code § 17508. As a result, private litigants must allege actual falsity or misrepresentation for their UCL, FAL, and CLRA claims, and may do so byciting to "testing, scientific literature, or anecdotal evidence." Alvarez v. NBTY, Inc., 2017 WL 6059159, at *8 (S.D. Cal. Dec. 6, 2017) (quoting Kwan v. SanMedica Int'l, LLC, 854 F.3d 1088, 1095-96 (9th Cir. 2017)).
In the false advertising context, an advertising claim is false if it has "actually been disproved," that is, if the plaintiff can point to evidence that directly conflicts with the claim. Eckler v. Wal-Mart Stores, Inc., 2012 WL 5382218, at *3 (S.D. Cal. Nov. 1, 2012). By contrast, an advertising claim that merely lacks evidentiary support is said to be unsubstantiated. Id. ( ).
Here, as already discussed, Plaintiff's FAC addresses both of the shortcomings the Court identified in her initial Complaint. First, Plaintiff's FAC now alleges that the Product's promise of "Appetite Control" is misleading because it conveys that the Product will help consumers control their appetite and that the promise of "Weight Management" is misleading because it conveys that the Product will help consumers manage their weight. Second, Plaintiff's FAC includes additional context on one of its studies to show how the study supports her claims. Specifically, the cited study, Kovacs I, tested whether "HCA supplementation might affect BW [body weight] regulation by inducing satiety and reducing food intake." [Doc. 11 at ¶ 17.] To study whether HCA affected appetite control, Kovacs I "measured participants['] hunger, appetite, anticipated food intake, desire to eat, fullness, satiety, and thirst." [Id. at ¶ 18.] The study concluded that "there was no statistically significant difference between HCA and a placebo on any of these appetite variables." [Id. at ¶ 18.] It further found that "supplementation with HCA . . . did not result in increased satiety or decreased energy intake compared to placebo." [Id. at ¶ 17.] The study concluded that it had "showed that HCA . . . [was] not effective with respect to satiety and energy intake[.]" [Id at ¶ 20.]
Defendant argues that Kovacs I limits its application to "what that study shows" - that "HCA and HCA combined with MCT were not effective with respect to satiety and energy intake." [Doc. 15 at p. 8 (emphasis added).] The Court is not persuaded that this phrase somehow undermines the study's direct...
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