Another court declines to apply GNC where plaintiff alleges only negative studies

Yeldo v. MusclePharm Corp., 2017 WL 5499588, Case No.
17-11011 (E.D. Mich. Nov. 16, 2017)
Yeldo brought a putative class action alleging that
MusclePharm used misleading marketing practices to promote its glutamine dietary
supplement, whose label and online ads indicate that it “enhances muscle growth
and recovery, supports rebuilding and recovery from the toughest workouts,
reduces catabolism and supports an anabolic environment, aids in muscle growth,
causes faster recovery, and helps consumers rehydrate, rebuild, and recover
faster and more efficiently.” Although glutamine naturally found within the
body plays a role in muscle growth, recovery, and immunity support, Yeldo
alleged that “glutamine supplementation has been found to be completely
ineffective at mimicking these physiological responses.” Yeldo based his claims
on nine scientific studies finding no benefit from glutamine.
The court found that Yeldo plausibly alleged falsity.  Although the court accepted that a plaintiff
must plead the existence of a study that tests the combination of ingredients
used in a given product, that means the active ingredient/s in
combination.  Here, the product at issue
relied only on one active ingredient. The studies alleged “support the
proposition that glutamine supplementation has no effect on muscle performance
or strength, muscle growth, recovery, or performance during exercise,” even if
they didn’t test MusclePharm’s specific products or dosages. 
MusclePharm argued that some of the studies supported its
claims, making the case more like In re GNC Corp., 789 F.3d 505 (4th Cir. 2015),
which (wrongly) held that literal falsity is impossible unless all reasonable
experts disagree with the advertising claim. Here, the complaint didn’t concede
that any scientists found glutamine effective, and MusclePharm merely
“cherry-pick[ed] sentences from the papers’ introduction sections, which
summarize the findings of other studies or hypothesize conditions where
supplemental glutamine may create the represented effects.”  Because the conclusions supported Yeldo’s
argument, he stated a claim.  Weighing
the merits of these scientific findings to determine which is most credible
wasn’t appropriate on a motion to dismiss. [Which is why GNC is wrong.]
Nor did Yeldo need to plead how and when he consumed the product
or whether he experienced the advertised benefits; he alleged that he bought
and consumed the product and either would not have done so or would not have
paid as much for the product if he’d known defendant’s representations were
false. That monetary harm was sufficient. However, his negligent
misrepresentation claim was barred by the economic loss doctrine.
Yeldo also had Article III standing to seek injunctive
relief, because consumer protection statues, which provide for injunctive
relief, could never be invoked to enjoin deceptive practices if the complaining
consumer’s standing dissipated the moment she discovered the alleged deception
and could no longer be fooled.
Yeldo’s claims weren’t preempted by the FDCA, since that
statute deems food misbranded when the label contains a statement that is “false
or misleading in any particular,” and so Yeldo’s claims paralleled the FDCA’s
requirements; the conduct at issue would also give rise to liability under
Michigan common law even if the FDCA had never been enacted. Nor did the doctrine
of primary jurisdiction bar these claims.

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