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.
At the district court level, the defendants moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). That court granted the motion, finding that the plaintiffs had failed to plead that “any reasonable expert would conclude from the cited [scientific] studies that glucosamine and chondroitin are ineffective in non-arthritic consumers,” and concluded that, under all of the state consumer protection laws at issue, “[i]f there are experts who support what [the defendants] say in their advertisements, the advertisements are not false and misleading . . .” In other words, a manufacturer cannot be held liable for false advertising so long as at least one qualified expert opines that the challenged representations are truthful, “even if the overwhelming weight of scientific evidence is to the contrary.” The district court also noted a practical consideration for its ruling: “[i]t is unfair to consumers who wish to gamble that glucosamine and chondroitin may be effective if lay juries can effectively ban the sale of [the ingredients] because the evidence of their effectiveness is inconclusive.”
On appeal, the Fourth Circuit affirmed the dismissal order, finding that the district court “accurately summarizes the law of false advertising.” In a thorough and thoughtful analysis, the Fourth Circuit found it fatal that the plaintiffs failed to allege that all scientists agree that glucosamine and chondroitin are ineffective in providing the advertised health benefits. The plaintiffs, thus, acknowledged that reasonable experts disagree whether glucosamine and chondroitin can deliver the promised benefits – i.e., that the scientific evidence is, at best, equivocal. According to the court, under such circumstances, there is no true “battle of the experts” that would preclude dismissal (or an award of summary judgment). At bottom, the Fourth Circuit confirmed that, unless a plaintiff alleges in the complaint that there are no qualified scientific experts who would find that the product or ingredient at issue can deliver the advertised health benefits, a false advertising claim cannot lie.
While In re GNC Corporation represents a substantial win for dietary supplement manufacturers, it should not be construed as a carte blanche, allowing them to make unsupported advertising claims or overstating the scientific evidence. Indeed, at the end of its decision, the Fourth Circuit issued warnings to both plaintiffs and dietary supplement manufacturers. As to plaintiffs, the court noted that plaintiffs who believe that no reasonable scientist would agree with the challenged representations remain free to make that allegation, but only so long as they meet their Rule 11 obligations. Otherwise, plaintiffs may open themselves up to sanctions. As to defendants, the court explained that “[a] manufacturer may not hold out the opinion of a minority of scientists as if it reflected broad scientific consensus.” If it does, it could be held liable for consumer fraud. Nonetheless, the decision should serve to be a useful arrow in the false advertising defendant’s quiver, and help curb the tide of false advertising filings.