The Fourth Circuit has recently made it more difficult for false advertising plaintiffs to survive a motion to dismiss where their claims are based on an allegation of “literal falsity.” In the suit, plaintiffs, purchasers of certain joint health supplements, alleged that GNC and Rite Aid engaged in false advertising and violated various state consumer protection laws, deceptive advertising, and express warranty statutes in marketing joint health supplements containing glucosamine and chondroitin. Specifically, plaintiffs alleged that the joint health representations on defendants’ product packaging were false because the “vast weight” of scientific evidence has shown that those ingredients are not more effective than placebos at treating osteoarthritis.

GNC and Rite Aid moved to dismiss, arguing that plaintiffs’ complaint failed to adequately plead that the companies’ marketing representations at issue were false. The district court agreed and dismissed the case, holding that a manufacturer cannot be liable for false advertising so long as at least one qualified expert opines that the manufacturers’ health representations are truthful, even if the significant weight of scientific evidence is to the contrary.

On appeal, the Fourth Circuit affirmed. The Court noted that the plaintiffs, by failing to allege that “all” scientists agree that glucosamine and chondroitin are ineffective at providing joint healthy benefits, had conceded that “some reasonable experts disagree” regarding the effectiveness of those ingredients in GNC’s and Rite Aid’s products. Because the marketing statements “accurately describe” qualified experts’ findings, those statements cannot be literally false, precluding plaintiffs from stating a claim. The Court summed it up this way: “when [false advertising] litigants concede that some reasonable and duly qualified scientific experts agree with a scientific proposition, they cannot also argue that the proposition is ‘literally false.’”

The Fourth Circuit’s ruling is the first of its kind, and will likely narrow the field of false advertising claims, based on an assertion of literal falsity, that survive the early pleading stage.