It is no surprise to anyone defending against false advertising claims that Rules 8 and 9(b) of the Federal Rules of Civil Procedure are powerful tools to force plaintiffs to articulate with specificity their theory of why particular advertising is indeed false.  In the past few years, however, a growing number of plaintiffs in food and nutritional supplement cases have attempted to immunize their complaints from dismissal by throwing in allegations that the product “didn’t work” for them or that the defendants’ advertising claims “lack reliable scientific evidence.”  A federal court in California, however, has found those allegations insufficient in a case against Pfizer challenging its advertising of a nutritional supplement called “Pro Nutrients Probiotic.”  Arroyo v. Pfizer, Inc., 2013 U.S. Dist. LEXIS 13789 (N.D. Cal. Jan. 31, 2013).

The plaintiff attacked Pfizer’s advertising of Pro Nutrients, alleging that Pfizer’s claims that the product “supports healthy immune function” are false in violation of California law.  Plaintiff alleged that she purchased and used Pro Nutrients but that the product “failed to enhance her immune function.”  Plaintiff also alleged that she had retained an expert to evaluate Pfizer’s claims and quoted that expert as stating, among other things, that the immune system cannot be boosted “artificially” or “by a powder” and that “Pfizer’s probiotics don’t work.”  For good measure, the Plaintiff threw in an allegation that Pfizer lacked competent and reliable scientific evidence to support its claims.

Judge Edward M. Chen found those allegations deficient under Rule 8’s plausibility standard:

Throughout the amended complaint, Plaintiff fails to plead any underlying factual premise that would justify her factual conclusion that Pro Nutrients ‘does not support healthy immune function and provides no actual benefit to a consumer’s immune system,’ or her legal conclusion that Pfizer’s claim to the contrary ‘is false and/or misleading under California law.’

Id. at *12-13.  In other words, because plaintiff took issue with the efficacy of Pro Nutrients and on that basis alleged the advertising was false, plaintiff needed to come forward with specific facts about why the product did not work as advertised.  Allegations regarding the findings of plaintiff’s expert were insufficient because they failed to address anything specific about the performance of Pro Nutrients.  Id. at *17.

Without facts substantiating why the product does not work as advertised or explaining why Defendant’s statements were false or misleading, the complaint fails to allege more than an unadorned, the-defendant-unlawfully-harmed-me accusation.

Id. at *13 (internal quotations omitted).