By Amanda Whorton
On June 19, 2015, the Fourth Circuit issued a published opinion in the civil case Brown v. GNC Corp. The court held that in order to assert a false advertising claim, a plaintiff must allege that all reasonable experts would agree the representations to be false. If a plaintiff cannot do so, even if a vast number of experts would agree that the representations are false, the claim may not survive a motion to dismiss.
False Advertising Claim
The plaintiffs are a group of consumers who purchased joint health supplements manufactured and sold by GNC and Rite Aid. These supplements contain glucosamine and chondroitin, along with other active ingredients. GNC sells these dietary supplements under the brand name TriFlex, and Rite Aid sells its own brand of dietary supplements under the name Rite Aid Glucosamine/Chondroitin. The product labels of these supplements claim that they promote joint health. Plaintiffs alleged that GNC and Rite Aid violated numerous states’ false advertising/consumer protection statutes by marketing that these supplements promote joint health. Their allegations are based on a number of scientific studies that show that glucosamine and chondroitin are ineffective at treating osteoarthritis. The complaint asserted that the products are incapable of performing as advertised, and they would not have purchased the supplements but for the false advertising.
The District Court Granted Defendants’ Motion to Dismiss
At the district court, GNC and Rite Aid filed a motion to dismiss for failure to state a claim under Federal Rules of Civil Procedure (“FRCP”) 12(b)(6), stating that the complaint did not adequately plead that the representations were false. The district court granted GNC and Rite Aid’s motion and concluded that if at least one reasonable expert determines that the representations made are truthful, even if the majority of scientific evidence suggests that the representations are false, a manufacturer cannot be liable for false advertising.
The district court granted plaintiffs leave to re-file if they could plead that “any reasonable expert would conclude from the cited studies that glucosamine and chondroitin do not improve joint health in non-arthritic consumers.” Plaintiffs did not re-file, but instead filed an appeal.
In addition to filing an appeal, plaintiffs moved for reconsideration under FRCP 60(b)(1), arguing that the court made a mistake of law. The district court reiterated its reasons from its holding and added that it would not promote consumer choice if juries were able to ban glucosamine and chondroitin when the scientific evidence is inconclusive. Plaintiffs did not file a separate order of appeal from the district court’s second order, so just the district court’s initial order was before the Fourth Circuit.
Pleading Standard
In order to state a plausible claim for relief under a state’s consumer protection law, a plaintiff must allege that (a) the representation on the product’s packaging is literally false or (b) the representation is literally true, but misleading. The complaint in this case did not allege that the defendants’ representations were true but misleading; it only stated facts to show that the representations were literally false. The complaint did not state that all experts agreed that glucosamine and chondroitin were ineffective at promoting joint health. Instead, it stated that “the vast weight of competent clinical evidence,” and the “overwhelming weight of high quality, credible and reliable studies,” supported that these ingredients were ineffective. The court stated that this was a failure to adequately plead that the representations were literally false.
In the alternative, the Fourth Circuit stated that the complaint was also defective because it did not allege that the other active ingredients in the products were incapable of promoting joint health. The plaintiffs needed to state that all of the active ingredients were ineffective at promoting joint health in order to adequately plead that the representations were false.
Fourth Circuit Affirms
The court held that when a plaintiff brings a false advertising claim, he or she must plead that all reasonable experts would agree that the product’s representations are false. The Fourth Circuit affirmed the district court’s dismissal of the complaint for failure to state a claim.
