Cardenas v. NBTY, Inc.

870 F.Supp.2d 984

Liliana CARDENAS, on Behalf of Herself and All Other Similarly Situated California Residents, Plaintiff,

v.NBTY, INC., a Delaware corporation and Rexall Sundown, Inc., a Florida corporation, Defendants.

No. CIV. S–11–1615 LKK/CKD.

United States District Court, E.D. California.

May 4, 2012.

Charles C. Sweedler, PHV, Howard J. Sedran, PHV, Keith J. Verrier, PHV, Levin Fishbein Sedran and Berman, Philadelphia, PA, Patricia N. Syverson, Elaine A. Ryan, PHV, Lindsey Gomez–Gray, PHV, Bonnett Fairbourn Friedman & Balint, Phoenix, AZ, Stewart Weltman, PHV, Futterman Howard Ashley & Weltman, P.C., Chicago, IL, for Plaintiff.

David Ryan Carpenter, Los Angeles, CA, Kara L. McCall, PHV, Chicago, IL, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

This class action alleges that Defendants NBTY Inc. (“NBTY”) and Rexall Sundown Inc. (“Rexall”) deceptively market and sell the Osteo Bi–Flex line of joint health dietary supplements without support for the efficacy representations made about those products. Plaintiff Liliana Cardenas, on behalf of herself and other similarly situated consumers of the Osteo Bi–Flex products, alleges violations of California's Consumers Legal Remedies Act and its Unfair Competition Law, and also allege breach of express warranty.

Presently before the court is Defendants' motion to dismiss Plaintiff's second amended complaint. See Defs' Mot., ECF No. 26. For the reasons provided below, the court denies Defendants' motion to dismiss.

I. BACKGROUND

A. Plaintiff's Complaint¹

Within the last year and a half, Plaintiff Liliana Cardenas saw Defendants' representations by reading the front, back, and sides of the Osteo Bi–Flex Regular Strength label at a Rite Aid store in Roseville, California. Pl's Second Am. Compl., ECF No. 25, at 4. Plaintiff Cardenas “relied on every single one of Defendants' renewal and rejuvenation representations” and purchased the Osteo Bi–Flex product “to relieve her joint pain.” Id. The Osteo Bi–Flex Regular Strength that Plaintiff purchased and took as directed did not help to promote mobility, renew cartilage, maintain healthy connective tissue, or improve joint comfort, as represented. Id. As a result, Plaintiff suffered injury in fact and lost money. Id.

Since 1996, Defendants have developed, manufactured, marketed, distributed, and sold a line of joint supplements under the Osteo Bi–Flex brand name, including: (1) Osteo Bi–Flex One Per Day; (2) Osteo Bi–Flex Triple Strength; (3) Osteo Bi–Flex Double Strength; (4) Osteo Bi–Flex Triple Strength with Vitamin D; (5) Osteo Bi–Flex MSM; (6) Osteo Bi–Flex Energy Formula; (7) Osteo Bi–Flex Regular Strength; and (8) Osteo Bi–Flex Advanced. Id. at 5.

The Osteo Bi–Flex products are sold in a number of major food, drug, and mass retail outlet stores in California, including Wal–Mart, Costco Wholesale, Sam's Club, Rite–Aid, Target, and Walgreens. Id. The Osteo Bi–Flex products are available in 30, 75, 80, 120, and 150 count bottles, retailing for approximately $19.99 to $44.99. Id.

According to Plaintiff, Defendants have consistently conveyed the message to consumers throughout California that Osteo Bi–Flex will help to “promote mobility,” “renew cartilage,” “maintain healthy connective tissue,” and improve joint comfort by taking the recommended number of tablets each day. Id. at 6.

According to Plaintiff, Defendants represent that the claimed health benefits are achieved through the combination of ingredients in the products. Id. The primary active ingredient—glucosamine hydrochloride—is in all the Osteo Bi–Flex products and is an amino sugar that the body produces and distributes in cartilage and other connective tissue. Id. Plaintiff asserts that there is no competent and reliable scientific evidence that taking glucosamine—let alone through oral administration—results in the body metabolizing it into something that helps to promote mobility, renew cartilage, maintain healthy connective tissue or improve joint comfort. Id. Clinical cause and effect studies have found no causative link between glucosamine hydrochloride supplementation and joint renewal or rejuvenation. Id.

The Osteo Bi–Flex products also contain Defendants' 5–LOXIN Advanced, which consists of a concentrated extract of Boswellia Serrata (“AKBA”). Osteo Bi–Flex Regular Strength is the only product without AKBA. Although Defendants claim that AKBA results in “improvement in joint comfort within 7 days,” there is no competent and reliable scientific evidence that taking AKBA—let alone through oral administration—helps to “promote mobility,” “renew cartilage,” “maintain healthy connective tissue,” or improve joint comfort. Clinical cause and effect studies have been unable to confirm a cause and effect relationship between AKBA supplementation and joint renewal or rejuvenation.

The Osteo Bi–Flex products also contain lesser amounts of the following other ingredients: chondroitin sulfate, which is in all of the Osteo Bi–Flex products except for Osteo Bi–Flex One Per Day; methylsulfonylmethane, which is in all of the products except for Osteo Bi–Flex One Per Day and Osteo Bi–Flex Regular Strength; hyaluronic acid, which is in all of the products except for Osteo Bi–Flex Advanced, Osteo Bi–Flex One Per Day, and Osteo Bi–Flex Regular Strength; and vitamin D, vitamin C, manganese, boron, and collagen. Id. at 7–8. There is no competent and reliable scientific evidence that taking chondroitin, methylsulfonylmethane, hyaluronic acid, vitamin D, vitamin C, manganese, boron, or collagen—let alone through oral administration—helps to “promote mobility,” “renew cartilage,” “maintain healthy connective tissue,” or improve joint comfort. Id. Clinical cause and effect studies have found no causative link between chondroitin, methylsulfonylmethane, hyaluronic acid, vitamin D, vitamin C, manganese, boron, or collagen supplementation and joint renewal or rejuvenation. Id.

The packages for the Osteo Bi–Flex products reference two studies supporting the Defendants' representation that the product “shows improvement in joint comfort,” but no information is included to enable customers to locate and review the studies. Id. at 8. Defendants do not have competent and reliable scientific evidence that any of the ingredients in their Osteo Bi–Flex products, when taken alone or in combination, are effective at helping provide joint renewal or rejuvenation. Id. at 10. Numerous clinical studies have resulted in a finding of no efficacy for the ingredients in the Osteo Bi–Flex products and the prevention of joint degeneration or relief from joint discomfort. Id.

As noted, plaintiff alleges violations of California's Unfair Competition Law (“UCL”), Business & Professions Code § 17200, et seq., and its Consumers Legal Remedies Act (“CLRA”), California Civil Code § 1750, et seq., as well as breach of express warranty. Id. at 14–18. Plaintiff seeks, inter alia, compensatory damages, restitution and disgorgement of Defendants' revenues, injunctive relief, and statutory and punitive damages. Id. at 18–19.

B. Defendants' Motion to Dismiss

Defendants make, inter alia, the following arguments. As a preliminary matter, Defendants argue that Plaintiff lacks standing to pursue claims, including putative class claims, as to the Osteo Bi–Flex products she did not purchase and advertising she did not view. See Defs' Mot., ECF No. 26, at 7–11. Second, Defendants argue that Plaintiff has failed to allege sufficient facts to support any of her claims because: (1) Plaintiff must allege and ultimately prove that the challenged marketing is actually false or misleading, and claims that the representation merely lacks substantiation are insufficient, id. at 11–15; and (2) Plaintiff makes conclusory and unspecified allegations regarding clinical cause and effect studies, which are insufficient to show what is specifically false or misleading about Defendants' representations, why those representations are false, and what facts Defendants were purportedly required to disclose, as required by Federal Rules of Civil Procedure 8 and 9(b), id. at 15–18. Finally, Defendants request that the case be dismissed with prejudice because “Plaintiff has already amended her complaint twice, and the claims remain fundamentally defective.” ²Id. at 20.

In opposing Defendants' motion to dismiss, Plaintiff argues, inter alia, that: (1) Plaintiff has standing to assert claims based on the advertised representations pertaining to all of the Osteo Bi–Flex products and Defendants' argument that Plaintiff lacks standing “is a premature and erroneous Rule 23 typicality argument, made under the guise of a standing argument,” see Pl's Opp'n, ECF No. 29, at 5–9; (2) Defendants are improperly characterizingPlaintiff's claims as “lack of substantiation” or “nondisclosure” claims, when Plaintiff, in fact, is alleging claims for false and deceptive advertising, id. at 9–10; (3) even if Plaintiff's claims may be characterized as lack of substantiation claims, it remains “actionable conduct when a manufacturer makes false and misleading health benefit claims about a product without having competent scientific proof supporting those claims,” id. at 10–11; (4) Plaintiff's UCL and CLRA claims are not predicated on common law fraud, and thus, Rule 8(a) (as opposed to Rule 9(b)) pleading standards apply and Plaintiff has satisfied those standards, id. at 11–13; and (5) even if the court determines that Plaintiff's complaint does “sound in fraud,” Plaintiff has satisfied Rule 9(b) pleading requirements, id. at 14–15.

II. STANDARDS FOR A MOTION TO DISMISS

A. Dismissal of claims governed by Federal Rule of Civil Procedure 8(a)

A Federal Rule of Civil Procedure 12(b)(6) motion challenges a complaint's compliance with the pleading requirements provided by the Federal Rules. In general, these requirements are established by Federal Rule of Civil Procedure 8, although claims that are “grounded in fraud” or “sound in...