On June 19, 2015, the U.S. Court of Appeals for the Fourth Circuit issued its decision in In re GNC Corporation; Triflex Products Marketing and Sales Practices Litigation (No. II), — F.3d –, No. 14-1724, 2015 WL 3798174 (4th Cir. June 19, 2015), handing a significant victory not just to the defendants in that multidistrict false advertising class action litigation, but to dietary supplement manufacturers nationwide that face false advertising claims brought under state consumer protection laws. More specifically, the Fourth Circuit’s decision made clear that, in order for a false advertising case to proceed beyond the dismissal stage, the complaint must allege that there is not a single qualified expert who would opine that the challenged representation is truthful. The ruling should prove a useful tool to any dietary supplement manufacturer finding itself the defendant in a class action alleging unfair, deceptive, or misleading advertising or marketing.
In In re GNC Corporation, the plaintiff-consumers had purchased glucosamine- and chondroitin-based joint health supplements manufactured and sold by the defendants, GNC Corporation and Rite Aid Corporation. The defendants alternately advertised on the supplements’ labels that the products “promote joint mobility & flexibility”; “protect joints from wear and tear of exercise”; “rebuild cartilage and lubricate joints”; “promote joint health”; and provide “[m]aximum strength joint comfort.” The product label for GNC’s “Triflex Fast-Acting” product also represented that the supplement was “[c]linically studied” by means of a randomized, double-blinded, placebo-controlled trial, which concluded that the supplement was “shown to improve joint comfort and function.” The plaintiffs alleged that the defendants violated the false advertising statutes and consumer protection acts of California, Illinois, Florida, Ohio, and New York by marketing their supplements as promoting joint health, even though many scientific studies purportedly have shown that glucosamine and chondroitin are “no more effective than placebo” in providing the advertised health benefits. In essence, the plaintiffs asserted that the various health representations made by the defendants were false because the vast weight of competent and reliable scientific evidence indicate that glucosamine and chondroitin do not provide the promised health benefits. Continue Reading