A federal court in California has, for the most part, found the consumer-fraud and breach-of-warranty claims filed on behalf of a putative class of dietarysupplement users sufficiently pleaded to survive the defendants’ motion to dismiss. Yacu v. All Am. Pharm. & Natural Foods, Inc., No. 13-0508 (U.S. Dist. Ct., C.D. Cal., in chambers order entered July 24, 2013). The product, Kre-Alkalyn®, is marketed as a muscle builder. At issue were allegations relating to three separate types of product representations: superior bioavailability, lower dosage and diminished side effects in comparison to other similar products.

Rejecting the defendants’ argument that superiority claims are nonactionable puffery, the court observed, the “claim that the Product is the only creatine in the world that does not lose potency is a specific and measurable characteristic of creatine products that could be proven false. Accordingly, Plaintiff’s claims based on Defendants’ bioavailability statements are not based on non-actionable puffery.” The court also concluded that the reasonable consumer “could be led to believe that the Product is more bioavailable compared to creatine monohydrate even though it is not.”

While the court found that the plaintiff’s allegations as to one of the defendants’ lower dosage statements failed to state a plausible claim, it found allegations as to two other statements actionable: “And you’d need only a small amount since the full dose could finally reach your muscle cells intact” and “In just 60 days, the Kre-Alkalyn® group experienced an overall strength increase of 28.5% above those in the creatine monohydrate group.” The plaintiff alleged that “the statements are misleading because they fail to disclose that the 28.5 percent statistic was based on a 2006 study in which subjects took 7.5 grams of the Product per day,” far in excess of the recommended 1.5 grams per day dosage. According to the court, “Defendants’ statements touting its relative strength gains are arguably misleading because consumers would need to consume substantially greater quantities each day to achieve such results.”

The court further determined that just one of the diminished side-effects allegations— claiming that the product lacked the loading-phase was misleading to consumers because studies show that the comparison product does not produce that side effect—was sufficiently pleaded. Allegations about product promotions claiming that the supplement did not lead to water retention were not sufficiently pleaded, in the court’s view, because the plaintiff cited conflicting studies on the issue, suggesting that “the research on this particular downside is inconclusive or unsubstantiated” and because “there is no private remedy for unsubstantiated advertising” in California.

Dismissed with prejudice was the plaintiff’s claim for unjust enrichment on the basis of recent federal and state opinions holding that the state “does not recognize a freestanding cause of action for unjust enrichment.”