A federal court in Florida has dismissed without prejudice a putative class action against GNC Holdings, Inc. seeking damages under the state’s Deceptive and Unfair Trade Practices Act for alleged false advertising of the defendant companies’ TriFlex® line of products, containing glucosamine and chondroitin.
Toback v. GNC Holdings, Inc., No. 13-80526 (U.S. Dist. Ct., S.D. Fla., decided September 13, 2013). According to the complaint, scientific research shows that these ingredients do not, as advertised, promote joint health and function and that the product the plaintiff purchased did not provide him with the advertised benefit.
Finding Federal Rule of Civil Procedure 9(b) inapplicable, the court ruled that the plaintiff had pleaded fraud with sufficient particularity under the Florida statute despite failing to allege separately which deceptive acts the plaintiff attributed to each defendant and failing to plead which health-benefit representations he was exposed to and when or where that exposure occurred. The court further determined that while Florida state courts had not defined a clear causation standard under the statute, "the Eleventh Circuit has held that the element of causation is met when the alleged misrepresentations would have deceived an objectively reasonable person." According to the court, the plaintiff "pleaded facts suggesting that the representations at issue would have deceived reasonable consumers."
The court also rejected the defendants’ argument that a plaintiff alleging a violation of Florida’s statute must plead that the product representations were affirmatively false and misleading and not merely unsubstantiated. In this regard, the court noted that (i) it is unclear whether a lack of substantiation claim is unavailable under the statute, and (ii) the plaintiff affirmatively alleged that the studies showed that glucosamine and chondroitin, two ingredients in the TriFlex® products, were ineffective in promoting joint health, thus alleging the existence of scientific evidence contradicting the representations and demonstrating their falsity.
Agreeing with the defendants as to the plaintiff’s lack of standing to pursue claims with respect to products he did not purchase, the court noted the district court split over the issue. Some refuse to address the matter on a motion to dismiss, finding it properly addressed at the class-certification stage. Under Eleventh Circuit precedent, however, "at least one named plaintiff must establish Article III standing for each class subclaim . . . and deferring the standing determination to the class-certification stage would yield no different result." The court ruled that the plaintiff has standing to bring only those claims relating to the TriFlex® Vitapak.
The court also determined that because the complaint has a "laser-like focus on the shortcomings of glucosamine and chondroitin" and fails to address the efficacy of other ingredients, such as cutch tree extract, Chinese skullcap root extract, methylsulfonyl-methane, white willow bark extract, fish oil, and other substances, that are apparently part of "a comprehensive Vitapak program that supports improved joint health," the plaintiff’s inefficacy allegations do not rise "above the speculative level." In a similar vein, the court found that the plaintiff’s "conclusory allegation that the Vitapak ‘did not help repair or preserve’ his cartilage" was devoid of any further detail or support and was accordingly merely a "legal conclusion couched as a factual allegation" that the court "is not bound to accept as true." The plaintiff was given the opportunity to file an amended complaint by September 27, 2013.