In re: GNC Corp.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-md-02491-JFM,1:14-cv-00120-JFM,1:14-cv-00122-JFM,1:14-cv-00123-JFM,1:14-cv-00002-JFM,1:14-cv-00033-JFM,1:14-cv-00465-JFM. [999605622]. [14-1724]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1724

In re:
GNC CORPORATION; TRIFLEX PRODUCTS MARKETING AND
SALES PRACTICES LITIGATION (NO. II)
------------------YVONNE BROWN; SHAWN HOWARD, on hehalf of themselves and all
others similarly situated; MICHAEL LERMA, On Behalf of
Themselves and All Others Similarly Situated; JEREMY GAATZ,
On Behalf of Themselves and All Others Similarly Situated;
ROBERT TOBACK; ROBERT CALVERT; THOMAS FLOWERS; JOHN J.
GROSS; JUSTIN M. GEORGE; LOUIS LASTRES, on behalf of
themselves and all others similarly situated,
Plaintiffs - Appellants,
v.
GNC CORPORATION, a Delaware Corporation; GNC HOLDINGS, INC.;
RITE AID CORPORATION,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:14-md-02491-JFM)

Argued:

March 25, 2015

Decided:

June 19, 2015

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by published opinion.
Judge Floyd wrote the opinion,
in which Judge Niemeyer and Senior Judge Hamilton joined.

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ARGUED: Robert Jeffrey Berg, DENLEA & CARTON LLP, White Plains,
New York, for Appellants.
Joseph R. Palmore, MORRISON &
FOERSTER, LLP, Washington, D.C., for Appellees.
ON BRIEF: E.
Duncan Getchell, Jr., Richmond, Virginia, Gordon W. Schmidt,
Courtney S. Schorr, MCGUIREWOODS, LLP, Pittsburgh, Pennsylvania,
for Appellees.

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FLOYD, Circuit Judge:
Appellants
supplements

are

consumers

produced

and

who

sold

by

purchased
GNC

and

joint

Rite

health

Aid.

The

supplements all contain glucosamine and chondroitin, and most
contain additional purportedly active ingredients.
allege

that

GNC

and

Rite

Aid

have

violated

Appellants

the

consumer

protection laws of various states by marketing these supplements
as promoting joint health, even though many scientific studies
have

shown

effective

that
than

osteoarthritis.

glucosamine
a

and

placebo

in

chondroitin
treating

are

the

no

more

symptoms

of

GNC and Rite Aid moved to dismiss the complaint

for failure to state a claim, arguing that the complaint failed
to

adequately

marketing

plead

falsity

representations.

motion in full.
describe

the

the

The

of

the

allegedly

district

court

misleading

granted

the

Because marketing statements that accurately
findings

of

duly

qualified

and

reasonable

scientific experts are not literally false, we affirm.

I.
Michael Lerma, Jeremy Gaatz, Robert Toback, Robert Calvert,
Shawn

Howard,

Thomas

Flowers,

John

Gross,

and

Justin

George

(collectively “Plaintiffs”) purchased a variety of joint health
supplements produced by General Nutrition Corporation and GNC
Holdings,

Inc.

(collectively

“GNC”)
3

and

Rite

Aid

Corporation

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(“Rite Aid”).
in

several

In putative class actions filed in federal courts
states,

ineffective

as

Companies”)
deceptive

Pg: 4 of 26

they

marketed

violated

the

and

and

that

the

supplements

GNC

and

Rite

that

various

advertising,

misrepresenting

alleged

state

consumer

express

effectiveness

of

warranty
the

Aid

are
(“the

protection,
statutes

supplements. 1

by
The

Judicial Panel on Multidistrict Litigation transferred three of
these actions (and two tag-along actions) to the United States
District Court for the District of Maryland for coordinated or
consolidated
established

pretrial
a

leadership

proceedings.
structure

Plaintiffs’
and

filed

a

Amended Complaint (CAC), at issue in this appeal. 2

counsel

Consolidated
Because this

case comes to us on a motion to dismiss for failure to state a
claim, we state the facts as alleged in the CAC and assume them
to be true.

Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d

597, 601 (4th Cir. 2015).
GNC manufactures, markets, distributes, and sells a line of
joint health dietary supplements under the brand name TriFlex:
1

The GNC plaintiffs (Lerma, Gaatz, Toback, Howard, and
Calvert) bring Counts I through VIII.
The Rite Aid plaintiffs
(Flowers, George, and Gross) bring Counts IX through XIII.
2

Although Brown v. GNC Corp., 13-05890 (N.D. Cal. filed
Dec. 19, 2013), was also transferred to the district court by
the Multidistrict Litigation Panel, the CAC does not include
Yvonne Brown (the plaintiff in that action) among the named
plaintiffs.

4

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GNC TriFlex; GNC TriFlex Fast-Acting; GNC TriFlex Sport; and GNC
TriFlex

Complete

compounds

glucosamine

(“glucosamine
ingredients
(HA).

Vitapak.

and

All

of

hydrochloride

chondroitin”).

Fast-Acting

and

products

and

They

methylsulfonyl-methane

TriFlex

the

(MSM)

TriFlex

contain

chondroitin
also

all

and

sulfate

contain

hyaluronic

Sport

also

the

the
acid

contain

a

variety of purportedly beneficial herbs, including white willow
bark

extract,

extract.

hops

cones

extract,

and

Chinese

skullcap

root

Finally, TriFlex Complete Vitapak contains tablets of

TriFlex Fast-Acting along with separate fish oil, willow bark,
and MSM supplements.
The TriFlex product labels represent that the supplements
“promote[] joint mobility & flexibility,” “protect[] joints from
wear and tear of exercise,” “rebuild[] cartilage and lubricate[]
joints,” and provide “[m]aximum strength joint comfort.”

J.A.

30, 189–93.

also

The

product

label

for

TriFlex

Fast-Acting

represents that the product was “[c]linically studied” by means
of

a

“12-week

multi-center,

randomized,

double-blind,

placebo

controlled study of 60 adults . . . taking 250 mg/day of the GNC
TriFlex

Fast-Acting

Blend”

comfort and function.”

and

J.A. 193.

was

“shown

to

improve

joint

The TriFlex Fast-Acting label

includes a chart representing that TriFlex Fast-Acting provides
a 20% improvement in joint function and 25-30% improvement in
joint flexibility.

Id.
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Rite Aid markets, distributes, and sells a line of housebrand

joint

health

dietary

Glucosamine/Chondroitin;

Rite

Glucosamine/Chondroitin;

Rite

Advanced

Aid

Complex;

supplements:

Rite

Rite

Aid

Aid

Natural

Glucosamine

Glucosamine

Aid

Chondroitin

Chondroitin,

Triple

Strength + MSM; Rite Aid Glucosamine Chondroitin + MSM; and Rite
Aid Glucosamine Chondroitin Advanced Complex with HA.

The Rite

Aid products are manufactured by GNC, and GNC is contractually
obligated to indemnify Rite Aid for the claims at issue here.
All

of

the

Rite

chondroitin.

Aid

All

products

of

the

Glucosamine/Chondroitin
Glucosamine/Chondroitin
purportedly

except

Rite

contain

HA,

Natural
and

various

All

represent

either

that

Chinese

Aid

extract, black catechu, and boswellia serrata gum extract.
products

including

Rite

Aid

MSM,

and

root

the

herbs

glucosamine

skullcap

of

beneficial

products

and
also

contain

they

“promote[]

joint

health” or that they “help[] rebuild cartilage and lubricate
joints.”

J.A. 195–205.

The named plaintiffs purchased several of the GNC and Rite
Aid products in a number of states.

No plaintiff alleges that

he or she was harmed by consuming the products, or that the
products

did

not

contain

glucosamine and chondroitin.

the

advertised

quantities

of

Rather, Plaintiffs allege that the

products are incapable of providing the advertised joint health
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benefits, and that they would not have purchased the products
but for the Companies’ false advertising.

They therefore bring

suit on behalf of themselves and similarly situated purchasers
under the consumer protection laws of their states.
Lerma, a California resident, purchased TriFlex Fast-Acting
in California and brings Counts II and III under California’s
Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.,
and Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq.
Gaatz, an Illinois resident, purchased TriFlex Sport in Illinois
and

brings

Count

IV

under

Illinois’s

Consumer

Fraud

and

Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et
seq.

Toback, a Florida resident, purchased TriFlex Complete

Vitapak

in

Florida

and

brings

Count

V

under

the

Florida

Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201
et

seq.

Acting

Calvert,
in

warranty

Ohio
under

an

and

Ohio

resident,

brings

Ohio’s

Count

UCC,

Ohio

purchased

VIII

for

Rev.

TriFlex

breach

Code

Ann.

of

Fast-

express

§ 1302.26.

Howard, a New York resident, purchased TriFlex Fast-Acting in
New York and brings Counts VI and VII under New York’s deceptive
business practices statute, N.Y. Gen. Bus. Law § 349, and false
advertising

statute,

N.Y.

Gen.

Bus.

Law

§ 350.

Flowers,

a

California resident, purchased unspecified Rite Aid products in
California and brings Counts X and XI under California’s Unfair
Competition Law and Consumers Legal Remedies Act.
7

Gross, a New

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Jersey resident, purchased unspecified Rite Aid products in New
Jersey and brings Count XII under the New Jersey Consumer Fraud
Act, N.J. Stat. Ann. § 56:8-1 et seq.
Pennsylvania

resident,

Glucosamine/Chondroitin
under

purchased

in

Pennsylvania’s

And finally, George, a
Rite

Pennsylvania

Unfair

Trade

and

Aid
brings

Practices

Natural
Count

and

XIII

Consumer

Protection Law, 73 Pa. Stat. Ann. § 201-1 et seq.
In

essence,

representations

Plaintiffs
made

on

allege

the

that

products’

the

various

packaging

health

are

false

because “the vast weight of competent and reliable scientific
evidence”

indicates

that

glucosamine

provide the promised health benefits.
this

conclusion,

Plaintiffs

cite

a

and

chondroitin

J.A. 33.
number

of

do

not

In support of
peer-reviewed

published studies that collectively show that “glucosamine and
chondroitin[]

are

ineffective

at

treating

the

symptoms

of

osteoarthritis, whether taken alone or in combination with each
other.”

J.A. 23.

Plaintiffs note that while the cited studies

were performed on patients with arthritis, “experts in the field
deem

these

clinical

studies

to

be

appropriate

proxies

for

whether [glucosamine and chondroitin] are effective for . . .
both

arthritic

ingredients.”

and

Id. n.5.

non-arthritic

users

of

these

Plaintiffs cite at least nine studies

that are claimed to show that glucosamine, chondroitin, or both
are no more effective than a placebo in relieving the symptoms
8

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Plaintiffs also cite two studies that purportedly

show that MSM is no more effective than a placebo in relieving
the symptoms of knee arthritis.
allegations
found

in

about
the

the

The CAC does not include any

effectiveness

products,

or

cite

of

any

the

herbal

studies

compounds

regarding

the

effectiveness of any of these herbal compounds at relieving the
symptoms of arthritis.
The Companies moved to dismiss the CAC for failure to state
a

claim

under

Procedure.

Rule

12(b)(6)

of

the

Federal

Rules

of

The district court granted the motion in full.

Civil
The

court found that the plaintiffs had failed to plead that “any
reasonable

expert

would

conclude

from

the

cited

[scientific]

studies that glucosamine and chondroitin are ineffective in nonarthritic consumers,” and concluded that under all of the state
consumer protection laws at issue in this case, “[i]f there are
experts

who

support

advertisements,

the

misleading . . . .”
court

held

that

a

what

[the

Companies]

advertisements
J.A. 248.

are

say
not

in
false

their
and

In other words, the district

manufacturer

cannot

be

liable

for

false

advertising so long as at least one qualified expert opines that
the representations made are truthful, even if the overwhelming
weight of scientific evidence is to the contrary.
The district court dismissed the CAC without prejudice and
expressly granted the plaintiffs leave to re-file if they could
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plead (in accordance with Rule 11) that “any reasonable expert
would

conclude

chondroitin

from

do

consumers.”

not
J.A.

the

cited

improve
249.

studies

joint

that

health

Plaintiffs

glucosamine
in

declined

and

non-arthritic
the

court’s

invitation to amend the CAC and instead timely filed a notice of
appeal.

We

have

jurisdiction

over

final

judgments

of

the

district court pursuant to 28 U.S.C. § 1291. 3
After

filing

their

appeal,

Plaintiffs

moved

for

reconsideration by the district court under Rule 60(b)(1) of the
Federal

Rules

of

Civil

Procedure,

arguing

that

court’s initial order rested upon a mistake of law. 4

the

district

Although we

3

Under the final order doctrine, we may take jurisdiction
over a case dismissed for failure to state a claim only if “the
grounds for dismissal clearly indicate that ‘no amendment in the
complaint could cure the defects in the plaintiff's case.’”
Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d
1064, 1067 (4th Cir. 1993) (brackets omitted).
Dismissals
without prejudice are generally not appealable final orders.
De’lonta v. Johnson, 708 F.3d 520, 523 n.2 (4th Cir. 2013). But
if, as here, a plaintiff declines the district court’s offer to
amend and chooses to stand on his or her complaint, the
plaintiff “waive[s] the right to later amend unless we determine
that the interests of justice require amendment.”
Chao v.
Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir. 2005).
Because of Plaintiffs’ waiver, we treat this case as if it had
been dismissed with prejudice and therefore have jurisdiction
over this appeal.
4

The Rule reads, in relevant part: “On motion and just
terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect[.]”
Fed. R. Civ.
P. 60(b)(1).

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held in United States v. Williams, 674 F.2d 310, 313 (4th Cir.
1982), that Rule 60 does not authorize motions for correction of
a mistake of law, the district court elected not to deny the
motion on this ground and instead responded to the substance of
the motion.
court

In its order (“the September Order”), the district

reiterated

the

reasons

stated

in

its

initial

order

dismissing the CAC and added one additional reason: It is unfair
to consumers who wish to gamble that glucosamine and chondroitin
may be effective if lay juries can effectively ban the sale of
glucosamine and chondroitin simply because the evidence of their
effectiveness

is

inconclusive.

Plaintiffs

did

not

file

a

separate notice of appeal with respect to the September Order.
However, they now purport to appeal both the initial order and
the September Order.

II.
As a threshold matter, we must determine whether we have
jurisdiction
September

to

Order.

consider
Rule

Plaintiffs’
3

of

the

purported

Federal

appeal

Rules

of

of

the

Appellate

Procedure requires would-be appellants to timely file a notice
of appeal with the Court “designat[ing] the judgment, order, or

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part thereof being appealed.” 5

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Fed. R. App. P. 3(c)(1)(B).

In a

civil case in which the federal government is not a party, a
notice of appeal is timely if filed within 30 days after entry
of judgment.

Fed. R. App. P. 4(a)(1).

Plaintiffs timely filed

a notice of appeal following the district court’s dismissal of
the CAC, but did not file an amended notice of appeal or a new
notice of appeal within 30 days of the entry of the September
Order.

They

now

contend—without

the

benefit

of

authority,

binding or otherwise—that it would be unfair for this Court to
require the filing of a separate notice of appeal following the
denial of a post-judgment motion.
Plaintiffs are apparently unaware of the generous tolling
provisions

of

Rule

4

of

the

Federal

Rules

of

Appellate

Procedure, which provides a clear road map for appellants who
wish

to

file

a

post-judgment

before taking their appeal.

motion

with

the

district

court

Appellants who file a motion for

reconsideration within 28 days following the district court’s
entry of judgment may wait to file their notice of appeal until
after the disposition of the Rule 60 motion, because the timely
5

The timely filing of a notice of appeal is not merely a
matter of clerical convenience.
Rather, it is “an event of
jurisdictional significance—it confers jurisdiction on the court
of appeals and divests the district court of its control over
those aspects of the case involved in the appeal.”
Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per
curiam).

12

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filing

of

appeal.

the

Filed: 06/19/2015

Rule

60

motion

Pg: 13 of 26

tolls

the

time

for

filing

an

Appellants who miss this 28-day deadline can still file

separate notices of appeal within 30 days of each challenged
order

and

then

consolidate

the

appeals.

Fed.

R.

App.

P.

4(a)(4)(A)(vi)&(B); see also Fobian v. Storage Tech. Co., 164
F.3d 887, 891 (4th Cir. 1999) (noting that “any appeal from the
denial” of a Rule 60 motion “can be consolidated with the appeal
from the underlying order”); 16A Charles Alan Wright & Arthur R.
Miller et al., Federal Practice and Procedure, § 3950.4 (4th ed.
2008).
Plaintiffs filed their Rule 60 motion 35 days after the
entry of judgment, too late to take advantage of Rule 4 tolling.
They also failed to file a separate notice of appeal from the
September Order.

We therefore grant the Companies’ motion to

dismiss the appeal of the September Order for want of appellate
jurisdiction.

III.
A.
“We
dismissal,

review

de

novo

accepting

the

an

appeal

complaint

from
as

a

Rule

true

reasonable inferences in the [plaintiffs’] favor.”

and

12(b)(6)
drawing

Summers v.

Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014).

Rule

8(a)(2) of the Federal Rules of Civil Procedure requires that a
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complaint

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contain

Pg: 14 of 26

“a

plain

short

and

statement

of

showing that the pleader is entitled to relief.”
P. 8(a)(2).

the

claim

Fed. R. Civ.

“[T]he pleading standard Rule 8 announces does not

require ‘detailed factual allegations,’ but it demands more than
an

unadorned,

accusation.”

the-defendant-unlawfully-harmed-me

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To “state a claim to relief that is plausible on its face,” a
plaintiff must “plead factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Id.

B.
In order to state a plausible claim for relief under all of
the state consumer protection statutes specified in the CAC,
Plaintiffs must plead facts from which we might infer that the
representations
deceptive,

or

made

on

the

misleading. 6

products’
The

6

packaging

district

court

were
held

false,
that

Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 490
(2d Cir. 2014)(“To state a claim under [New York] GBL § 349, a
plaintiff ‘must prove three elements: first, that the challenged
act or practice was consumer-oriented; second, that it was
misleading in a material way; and third, that the plaintiff
suffered injury as a result of the deceptive act.’”
(quoting
Stutman v. Chem. Bank, 95 N.Y.2d 24, 29 (2000))); Virgilio v.
Ryland Grp., Inc., 680 F.3d 1329, 1338 n.25 (11th Cir. 2012) (“A
consumer claim for damages under [Florida’s] FDUTPA has three
(Continued)
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Plaintiffs have failed to satisfy this minimal pleading burden.
For the reasons that follow, we agree.

1.
The district court held that “[i]f there are experts who
support what [the Companies] say in their advertisements, the

elements: (1) a deceptive act or unfair practice; (2) causation;
and (3) actual damages.”); McKinney v. Bayer Corp., 744 F. Supp.
2d 733, 753 (N.D. Ohio 2010) (“To state a claim for breach of
warranty under the [Ohio] UCC, a plaintiff must allege: (1) the
existence of a warranty; (2) the product failed to perform as
warranted; (3) the plaintiff provided the defendant with
reasonable notice of the defect; and (4) the plaintiff suffered
an injury as a result of the defect.”); Engel v. Novex Biotech
LLC, No. 14-cv-03457-MEJ, 2014 WL 5794608, at *2 (N.D. Cal. Nov.
6, 2014) (“In an action for false advertising under the
[California] UCL and CLRA, the plaintiff bears the burden of
proving
the
defendant’s
advertising
claim
is
false
or
misleading.” (internal quotation marks omitted)); De Bouse v.
Bayer AG, 235 Ill. 2d 544, 550, (2009) (“A[n Illinois] Consumer
Fraud Act claim requires (1) a deceptive act or practice by the
defendant, (2) the defendant's intent that the plaintiff rely on
the deception, (3) the occurrence of the deception in a course
of conduct involving trade or commerce, and (4) actual damage to
the plaintiff that is (5) a result of the deception.”);
Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 122 (2014) (“An
unlawful
practice
under
the
[New
Jersey]
CFA
requires
‘fraudulent, deceptive or other similar kind of selling or
advertising practices.’” (quoting Daaleman v. Elizabethtown Gas
Co., 77 N.J. 267, 271 (1978))); Koch v. Acker, Merrall & Condit
Co., 18 N.Y.3d 940, 941 (2012) (per curiam) (“To successfully
assert a claim under [New York] General Business Law § 349(h) or
§ 350, ‘a plaintiff must allege that a defendant has engaged in
(1) consumer-oriented conduct that is (2) materially misleading
and that (3) plaintiff suffered injury as a result of the
allegedly deceptive act or practice.’” (quoting City of N.Y. v.
Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 621 (2009))).

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advertisements are not false and misleading . . . .”

J.A. 248.

The district court clarified that Plaintiffs should not amend
the CAC unless they can plead that “any reasonable expert would
conclude from the cited studies that glucosamine and chondroitin
do not improve joint health in non-arthritic consumers.”
249.

J.A.

The district court’s test—while incorrect in its specific

formulation—accurately summarizes the law of false advertising. 7
The federal Lanham Act creates a private right of action
for corporate victims of “false or misleading” descriptions or
representations.
as

Plaintiffs)

15 U.S.C. § 1125(a).
cannot

invoke

the

Although consumers (such

protections

of

the

Lanham

Act, Lexmark Int’l, Inc. v. Static Control Components, Inc., 134
S.

Ct.

1377,

1390

(2014),

the

considerable

body

of

federal

common law construing the Act is instructive in construing the
state laws at issue here.

Courts uniformly interpret “false or

7

The district court’s reference to the specific studies
cited in the CAC is error.
Under Twombly and Iqbal, “a
plaintiff need not ‘forecast’ evidence sufficient to prove the
elements of the claim.”
Walters v. McMahen, 684 F.3d 435, 439
(4th Cir. 2012) (quoting Robertson v. Sea Pines Real Estate
Cos., 679 F.3d 278, 291 (4th Cir. 2012)).
While the studies
cited in the CAC are statements of fact that may collectively
“raise a right to relief above the speculative level,” Twombly,
550 U.S. at 555, they do not comprise the full body of evidence
that the factfinder would ultimately consult to determine
liability. As will be developed below, the question of falsity
hinges on the existence (or not) of scientific consensus and not
on the conclusions that hypothetical scientists might draw from
those studies referenced in the CAC.

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misleading” as creating two different theories of recovery in a
false advertising claim: A plaintiff must allege either (i) that
the challenged representation is literally false or (ii) that it
is

literally

true

but

nevertheless

misleading.

See,

e.g., Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134,
1139 (9th Cir. 1997); BASF Corp. v. Old World Trading Co., 41
F.3d 1081, 1089 (7th Cir. 1994); Castrol Inc. v. Pennzoil Co.,
987 F.2d 939, 943 (3d Cir. 1993); see also 44 Am. Jur. Proof of
Facts

3d

1,

plaintiff

§ 8

(2015)

arguing

that

(collecting
a

cases).

representation

is

A

Lanham

misleading

Act
must

produce extrinsic evidence of actual consumer confusion—it is
not

enough

for

a

representation
consumers.

court

to

determine

could

have

after

fact

misled

that

a

hypothetical

See Scotts Co. v. United Indus. Corp., 315 F.3d 264,

272–73 (4th Cir. 2002).

However, a plaintiff arguing literal

falsity need not produce such evidence. Id.
is

the

false,

we

assume

as

a

matter

of

If a representation

law

that

it

is

also

misleading.
In construing the diverse state statutes at issue here, we
apply

this

broadly

shared

understanding

of

the

difference

between false and misleading representations.

Every statute at

issue

representations.

here

Although

imposes

each

state

liability
supplies

for
its

17

misleading
own

test

for

determining

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whether

true

Filed: 06/19/2015

statements

are

Pg: 18 of 26

misleading, 8

statements

that

are

literally false are necessarily misleading within the meaning of
all of the statutes.

Crucially, Plaintiffs have consistently

argued below and on appeal that the challenged representations
are false and that the challenged products are ineffective.

The

CAC nowhere alleges, and Plaintiffs have at no time argued, that
any of the representations are literally true but misleading.
Because

Plaintiffs

elected

to

plead

that

the

Companies’

representations are false rather than true but misleading, we
must determine whether the CAC states facts showing that the
representations are literally false.
case

is

products
show

a

improve

that

health

syllogism:
joint

glucosamine

more

than

a

(i)

the

health;
and

Plaintiffs’ theory of the

Companies
(ii)

scientific

chondroitin

placebo

represent

would;

do

not

(iii)

that

evidence
improve
therefore,

the
will

joint
the

representations must be false because the products do not and
cannot improve joint health.

However, the CAC does not allege

8

See, e.g., Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 155
(2002) (“[A] plaintiff must allege that he was, in some manner,
deceived.”); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 69
(1985) (asking “whether the ad itself is misleading to the
average consumer”); Guggenheimer v. Ginzburg, 43 N.Y.2d 268,
272–73 (1977) (“In weighing a statement's capacity, tendency or
effect in deceiving or misleading customers, we do not look to
the average customer but to the vast multitude which the
statutes were enacted to safeguard including the ignorant, the
unthinking and the credulous . . . .”).

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that all scientists agree that glucosamine and chondroitin are
ineffective

at

providing

the

promised

joint

health

benefits.

Rather, it alleges that “the vast weight of competent clinical
evidence,”

J.A.

33,

and

the

“overwhelming

weight

of

high

quality, credible and reliable studies,” J.A. 35, support this
finding.

Plaintiffs thereby concede that, although most duly

qualified

scientific

chondroitin

are

experts

may

agree

ineffective,

some

that

glucosamine

reasonable

experts

and

disagree

and believe that glucosamine and chondroitin can provide the
symptom

relief

promised

by

the

Companies.

In

other

words,

contrary to the second prong of Plaintiffs’ own syllogism, the
CAC alleges that the scientific evidence regarding the efficacy
of glucosamine and chondroitin is equivocal.

Plaintiffs have

therefore failed to allege that the challenged representations
are literally false.
Plaintiffs urge that it is inappropriate for the court to
resolve a “battle of the experts” on the pleadings.

However, we

need not resolve any “battle of the experts” in order to decide
whether the CAC states a claim for false advertising.
litigants
scientific

concede
experts

that
agree

some

reasonable

with

a

and

scientific

duly

When

qualified

proposition,

they

cannot also argue that the proposition is “literally false.”
Either the experts supporting the Companies are unreasonable and
unqualified

(in

which

case,

there
19

is

no

real

battle

of

the

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experts to begin with) or they reflect a reasonable difference
of

scientific

opinion

representations

cannot

characterizing

the

Plaintiffs

highlight

(in

case

said

be

which
to

literally

dispute
the

as

a

CAC’s

be

battle

concession

difference

of

scientific

opinion

glucosamine

and

chondroitin

can

the

false).

of

the

that

a

exists

provide

challenged

the

as

By

experts,
reasonable

to

whether

advertised

joint

health benefits.
Plaintiffs also object that our holding today would “permit
a manufacturer of the most dubious product to engage an ‘expert’
and then contend it was immune from a consumer fraud action.”
Appellants’ Br. at 18.
no

reasonable

However, plaintiffs who believe that

scientist

would

agree

with

the

challenged

representations remain free to make that allegation.

Having

done the due diligence required by Rule 11 of the Federal Rules
of

Civil

Procedure,

they

need

not

fear

that

the

defendant’s

subsequent production of a surprise expert whose opinion is not
reflected in the published scientific literature would expose
them to Rule 11 sanctions. 9

See Morris v. Wachovia Sec., Inc.,

9

The label of TriFlex Fast-Acting references such a private
study.
Although Plaintiffs were free to allege that the study
cannot have been conducted in a reasonable or reliable way
(because
all
reasonable
experts
support
the
opposite
conclusion), they failed to do so.
We decline to speculate as
to why, if the evidence is as clear and univocal as they claim,
Plaintiffs exhibited such hesitation.

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448 F.3d 268, 278 (4th Cir. 2006) (noting that Rule 11(b) is
violated

only

when

a

party

has

allegation in a signed pleading).

no

factual

basis

for

an

Moreover, plaintiffs remain

protected from dubious experts by the Federal Rules of Evidence,
which “ensure that any and all scientific testimony . . . is not
only relevant, but reliable.”

Cooper v. Smith & Nephew, Inc.,

259 F.3d 194, 199 (4th Cir. 2001) (quoting Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 588 (1993)).
Our holding today should not be interpreted as insulating
manufacturers

of

consumer fraud.

nutritional

supplements

from

liability

for

A manufacturer may not hold out the opinion of

a minority of scientists as if it reflected broad scientific
consensus.
of

the

Nevertheless, we need not decide today whether any

representations

misleading,

because

made

on

Plaintiffs

the
chose

Companies’
not

to

products
include

are
such

allegations in the CAC.
In sum, we hold that in order to state a false advertising
claim on a theory that representations have been proven to be
false, plaintiffs must allege that all reasonable experts in the
field agree that the representations are false.

If plaintiffs

cannot do so because the scientific evidence is equivocal, they
have

failed

to

plead

that

the

representations

disputed scientific evidence are false.

21

based

on

this

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2.
The CAC is also defective because it fails to allege that
all of the ingredients contained in the products are incapable
of providing the represented benefits.

This defect presents an

alternate ground for affirming the district court.
The

CAC

glucosamine

alleges

and

that

chondroitin,

according
MSM,

and

to
HA

most

do

not

benefits represented on the products’ packaging.
of

the

products

ingredients.

cited

in

the

complaint

scientists,
provide

the

However, most

contain

additional

All of the GNC products allegedly purchased by the

named plaintiffs contain ingredients not referenced in the CAC,
including white willow bark extract, hops cones extract, Chinese
skullcap

root

extract,

and

fish

oil.

All

of

the

Rite

Aid

products allegedly purchased by named plaintiffs except for Rite
Aid

Natural

ingredients.

Glucosamine/Chondroitin

also

contain

additional

Plaintiffs conceded before the district court that

the CAC does not “specifically address” what they refer to as
the “minor ingredients” in the products. 10

10

J.A. 125.

Despite this earlier concession, Plaintiffs represented
to this Court that “[t]he CAC . . . alleges that all of the
ingredients in Defendants’ products have been proven . . . to be
ineffective” and that “the cited studies . . . include all of
the ingredients in Defendants’ products.” Appellants’ Reply Br.
(Continued)
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Most of the challenged representations—including “supports
improved joint health,” “protects joints,” “joint comfort,” and
“rebuilds cartilage”—refer to the products as a whole. 11

The

products, except for Rite Aid Natural Glucosamine/Chondroitin,
contain

herbal

compounds

health and comfort.

that

ostensibly

contribute

to

joint

To the extent that Plaintiffs failed to

allege that all of the purportedly active ingredients in each
product are ineffective at promoting joint comfort, health, and
flexibility, they have failed to adequately plead falsity of the
representations regarding the products as a whole.

See Toback

v. GNC Holdings, Inc., No. 13-80526-CIV, 2013 WL 5206103, at *5
(S.D. Fla. Sept. 13, 2013) (“Plaintiff’s allegations regarding
the inefficacy of glucosamine and chondroitin simply fail to
address

the

efficacy

of

the

TriFlex

Vitapak’s

multifarious

1, 8 (emphasis added). Plaintiffs’ counsel is reminded “that a
lawyer’s duty of candor to the court must always prevail in any
conflict with the duty of zealous advocacy.”
U.S. Dep’t of
Hous. & Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of Va.,
Inc., 64 F.3d 920, 925 (4th Cir. 1995).
11

GNC TriFlex Complete Vitapak represents on the side of
the package and in small print that “[g]lucosamine and
chondroitin help preserve joint function and rebuild cartilage.”
J.A. 189. GNC TriFlex Fast-Acting represents, in small print on
the side of the package, that “[s]cientific research has shown
that these building block compounds [i.e., glucosamine and
chondroitin] help to support the body’s natural ability to
regenerate cartilage and lubricate joints thus supporting joint
health integrity and function.” J.A. 193.

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composition in promoting joint health, and thus fail to raise
Plaintiff’s claim, that the Vitapak as a whole does not function
as

advertised,

above

the

added)); McCrary

v.

(OPx),

6402217,

2013

(dismissing
supplement

WL

claims
when

speculative

Elations
at

regarding

plaintiff

Co.,
*5

LLC,
(C.D.

the

level.”

No.
Cal.

overall

provided

EDCV

no

(emphasis
13–0242

Apr.

24,

2013)

formulation
scientific

JGB

of

a

studies

regarding several of the purportedly active ingredients).
We therefore affirm the dismissal of all claims regarding
the

overall

formulation

of

all

products

except

for

Rite

Aid

Natural Glucosamine/Chondroitin on the alternate ground that the
CAC

does

not

allege

that

the

products’

ingredients

are

ineffective as marketed.

3.
The Companies also argue that the studies cited in the CAC
are

not

specific

enough

to

raise

any

plausible

inferences

regarding the efficacy of the challenged products.

We find this

line

with

of

reasoning

unpersuasive

and

inconsistent

notice

pleading under Twombly and Iqbal.
First,

the

Companies

argue

that

because

the

scientific

studies cited in the CAC concerned patients with osteoarthritis,
their findings are inapplicable to people without arthritis who
experience joint pain and stiffness.
24

Plaintiffs respond that we

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must take as true the CAC’s allegation that “experts in the
field deem [clinical studies conducted on arthritic patients] to
be appropriate proxies for whether the ingredients are effective
. . . for both arthritic and non-arthritic users.”

J.A. 23 n.5.

Plaintiffs further note that the symptoms of arthritis assessed
in

the

studies—joint

stiffness,

pain,

and

discomfort—are

precisely the symptoms that the products purport to remedy.
example,

the

CAC

cites

one

study

that

concluded

For
that

“glucosamine and chondroitin, alone or in combination, did not
reduce joint pain . . . compared with a placebo,” and another
that found that “glucosamine and chondroitin did not rebuild
cartilage.”

J.A. 37–38.

It may well be that glucosamine and

chondroitin work differently in people with arthritis than in
people

without

arthritis,

but

such

a

factual

dispute

is

not

susceptible to resolution at the motion-to-dismiss stage.
Second,

the

Companies

argue

that

the

scientific

studies

cited in the CAC are insufficient evidence of falsity because
they

did

products

not
or

ingredients.

assess
the

the

specific

synergistic

They

argue

formulations

effects

that

the

between

studies

used
the

are

in

the

products’

inapplicable

because they considered different amounts and combinations of
glucosamine and chondroitin.

Again, however, our inquiry at

this stage is limited to the plausibility of the CAC and not the
ultimate truth of its allegations: The applicability of a study
25

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regarding
products

Filed: 06/19/2015

different
at

issue

motion-to-dismiss

dosages
is

not

stage.

Pg: 26 of 26

of

the

same

susceptible
See

Quinn

to

v.

ingredients

to

the

resolution

at

the

Walgreen

Co.,

958

F.

Supp. 2d 533, 544 (S.D.N.Y. 2013); Pearson v. Target Corp., No.
11 CV 7972, 2012 WL 7761986, at *2 (N.D. Ill. Nov. 9, 2012)
(“[W]hether or not the proffered studies are applicable to Up &
Up Triple Strength is a question of fact that I do not decide at
this stage.

The fact that these studies looked at products that

shared the same active ingredients-Glucosamine, Chondroitin, and
MSM-makes

Plaintiff's

also

v.

Jovel

i-Health,

claim

facially

Inc.,

No.

plausible.”);

12-CV-5614

5437065, at *9 (E.D.N.Y. Sept. 27, 2013).

(JG),

2013

see
WL

We therefore decline

to adopt these grounds for affirming the district court’s order.

IV.
For the foregoing reasons, we hold that the CAC fails to
state a claim upon which relief can be granted.

The judgment of

the district court is therefore
AFFIRMED.

26