Rikos v. Procter & Gamble Co., Case No. 1:11–cv–226.

Decision Date04 May 2011
Docket NumberCase No. 1:11–cv–226.
Citation74 UCC Rep.Serv.2d 572,782 F.Supp.2d 522
PartiesDino RIKOS, Plaintiff,v.PROCTER & GAMBLE COMPANY, Defendant.
CourtU.S. District Court — Southern District of Ohio


Leslie E. Hurst, Thomas Joseph O'Reardon, II, Timothy Gordon Blood, Blood Hurst & O'Reardon LLP, Alex M. Tomasevic, Craig McKenzie Nicholas, Nicholas and Butler LLP, San Diego, CA, for Plaintiff.Joanne E. Caruso, Baker & Hostetler LLP, Los Angeles, CA, for Defendant.


TIMOTHY S. BLACK, District Judge.

This civil action is currently before the Court on Defendant's motion to dismiss (Doc. 10) and the parties' responsive memoranda (Docs. 15, 17).


This action arises out of alleged misrepresentations made by Defendant in its marketing and sale of a product known as “Align.” Align is a daily food supplement, which Procter & Gamble claims is made of a special formulation of “probiotic” bacteria that builds and maintains a healthy digestive system. P & G states on the product label and in its advertisements that these digestive benefits are clinically and scientifically proven.

Plaintiff alleges that these claims are false and misleading and therefore asserts claims for violation of the Consumers Legal Remedies Act (“CLRA”) (California Civil Code Section 1750, et seq.) and the Unfair Competition Law (“UCL”) (Bus. & Prof.Code Section 17200, et seq.), and breach of express warranty created by P & Gs advertising.

P & G, through a broad based campaign, advertises that Align contains a “Unique Patented Probiotic” that it calls “Bifantis.” (Doc. 9 at ¶ 1). On the Align package, P & G promises that Align will help:

*Build and maintain a healthy digestive system

*Restore your natural digestive balance

*Protect against occasional digestive upsets

( Id. at ¶ 2).

P & G also advertises that Align's digestive benefits are “clinically proven” and touts Align with its trademarked phrase “GREAT DIGESTION THROUGH SCIENCE.” ( Id. at ¶¶ 2, 23, 24). P & G further advertises that Align is “Recommended by Gastroenterologists” and that there is “Proof: Bifantis has been the subject of several clinical studies and has been featured in peer-reviewed journals. Please see Bifantis.com for full details.” ( Id. at ¶ 24). On its website, P & G provides purported scientific information and data, including what it calls “Clinical Data Publications,” that P & G claims are proof of the claimed digestive health benefits. ( Id. at ¶¶ 35–37).

P & G's claims are made through a broad based advertising campaign. P & G prominently and conspicuously makes these claims on every Align package, and emphasizes and repeats them through a variety of advertising media including television commercials, point of sale displays, and the Internet. ( Id. at ¶ 4).

Plaintiff alleges that the Align label makes claims that are false and misleading. For example, P & G's own “clinical trial” concluded that there were no statistically significant differences between the control group and the group ingesting the “Bifantis” bacteria, B. Infantis. ( Id. at ¶ 36). As to the “Clinical Data Publications,” neither provides proof (clinical or otherwise) of the Align claims. Both studies analyzed patients with irritable bowel syndrome, and not Align's target audience, the general population. ( Id. at ¶ 37). A 2006 study tested endpoints irrelevant to P & G's advertised claims and tested amounts of the bacteria materially different from the amount in a serving of Align (which the authors stressed was important to the study findings). ( Id.) A 2005 study found that those persons receiving the Align bacteria did not experience any improvement in the bowel movement markers. ( Id.; see also ¶¶ 38, 39) (allegations concerning “preclinical data publications” and “review articles identified by P & G as purported substantiation for its Align claims).

Plaintiff alleges that Align is nothing but sugar-filled capsules injected with a small amount of unremarkable bacteria. Nonetheless, customers pay $30 for a 28–count package. ( Id. at ¶ 6). Plaintiff read the claims on the Align label, believed they were true, and purchased Align in reliance on P & G's advertised claims, expecting that he was paying for a product that had proven digestive health benefits. ( Id. at ¶ 10).


Defendant moves the Court for an order dismissing the amended complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.

A. Fed.R.Civ.P. 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides that an action maybe dismissed for lack of subject matter jurisdiction. Under the Federal Rules, [p]laintiffs have the burden of proving jurisdiction in order to survive a Rule 12(b)(1) motion.” Weaver v. Univ. of Cincinnati, 758 F.Supp. 446, 448 (S.D.Ohio 1991) (citing Moir v. Greater Cleveland Reg'l. Transit Auth., 895 F.2d 266, 269 (6th Cir.1990)). “The plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of federal subject matter jurisdiction.” Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986)

B. Fed.R.Civ.P. 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint.

The first step in testing the sufficiency of the complaint is to identify any conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, “a plaintiff's obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although the court must accept well-pleaded factual allegations of the complaint as true for purposes of a motion to dismiss, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id.

After assuming the veracity of all well-pleaded factual allegations, the second step is for the court to determine whether the complaint pleads “a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949, 1950 (citing Twombly, 550 U.S. at 556, 570, 127 S.Ct. 1955). A claim is facially plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

A. Lack of Substantiation

Defendant argues that Plaintiff fails to meet the plausibility pleading requirement expressed in Twombly and Iqbal. The Sixth Circuit has held that courts “cannot dismiss for factual implausibility ‘even if it [would] strike [ ] a savvy judge that recovery is very remote and unlikely.’ Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 630 (6th Cir.2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). At the motion to dismiss stage, the court is not concerned with a challenge to a plaintiff's factual allegations. Golden v. City of Columbus, 404 F.3d 950, 958–59 (6th Cir.2005). Rather, the court looks to whether the complaint states a claim upon which relief can be granted. Id.

Defendant alleges that Plaintiffs complaint is premised entirely on allegations that P & G's labeling and advertising claims for Align are not adequately substantiated. (Doc. 9 at ¶¶ 1, 3, 13, 17, 18, 20, 22, 23, 25, 28, 29–41). Defendant maintains that, in a false advertising action, a plaintiff must plead and prove that the advertising statements at issue are false or misleading, not merely that they lack adequate scientific substantiation. Fraker v. Bayer Corp., No. CV F 08–1564, 2009 WL 5865687, at *8, 2009 U.S. Dist. LEXIS 125633, at *20–21 (E.D.Cal. Oct. 2, 2009).1 Accordingly, Defendant argues that the allegations that Align's advertising claims lack scientific substantiation are not a sufficient basis upon which to state claims.

Defendant alleges that, in a false advertising case, plaintiff must plead and prove that the advertising statements are “false or misleading” 2—which is exactly what Plaintiff pleads. ( See, e.g., Doc. 1 at ¶ 1 (P & G's “representations are false, misleading and reasonably likely to deceive the public.”)). Accordingly, this Court declines to find that Plaintiff's complaint was filed under an alleged “lack of scientific substantiation” theory.

B. Primary Jurisdiction Doctrine

Alternatively, Defendant argues that Plaintiff's claims should be dismissed under the primary jurisdiction doctrine. Primary jurisdiction is a “prudential doctrine under which courts may, under appropriate circumstances, determine that the initial decisionmaking responsibility should be performed by the relevant agency rather than the courts.” Syntek Semiconductor Co., Ltd. v. Microchip Tech., Inc., 307 F.3d 775, 780 (9th Cir.2002).

Dismissal on primary jurisdiction grounds “does not speak to the jurisdictional power of the federal courts,” but rather “structures the proceedings as a matter of judicial discretion, so as to engender an orderly and sensible coordination of the work of agencies and courts.” United States v. Bessemer & L.E.R.R., 717 F.2d 593, 599 (D.C.Cir.1983). The doctrine applies when a court's jurisdiction over a matter overlaps with the jurisdiction of an administrative agency. United States v. Western Pac. R.R. Co., 352 U.S. 59, 63–64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). To justify application of the primary jurisdiction doctrine, [t]he particular agency deferred to must be one that Congress has vested with the authority to regulate an industry or activity such that it would be inconsistent with the statutory scheme to deny...

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