A federal court in California has denied the defendants’ motion to dismiss a putative class action alleging that health-related representations about their dietary supplements containing glucosamine, chondroitin and “MSM” are false and misleading because scientific evidence refutes these assertions and the products do not provide the relief and benefits advertised. Hazlin v. Botanical Labs., Inc., No. 13-0618 (U.S. Dist. Ct., S.D. Cal., order entered August 8, 2013).

According to the court, the claims were not preempted because they are not based on either an interpretation or violation of the Food, Drug, and Cosmetic Act; instead, they allege violations of state law. The court also rejected the defendants’ argument that the plaintiffs’ claims rely on a “lack of substantiation” theory, which is non-cognizable. While the plaintiffs allege that the defendants lack competent and reliable scientific evidence to substantiate their health-benefit representations, they also cite 23 studies that purportedly refute the product claims and render them false. Agreeing with the plaintiffs that the defendants invited the court to weigh the evidence cited in support of the plaintiffs’ allegations, the court found that the defendants’ challenge to the alleged facts does not constitute insufficient pleading and does not warrant dismissal on that basis.

The court further declined to rule at this stage that the plaintiffs lacked standing to pursue claims based on representations they did not see and therefore did not rely on when purchasing the products. According to the court, while the district courts in California are split on the issue, the majority was persuasive, and “whether Plaintiffs may pursue claims based on representations they did not see is more appropriately addressed on class certification, not a motion to dismiss.”