Nathan v. Vitamin Shoppe, Inc.

Filing 10

ORDER granting 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge Roger T. Benitez on 2/12/2018. (anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ANDREA NATHAN, on behalf of herself, all others similarly situated, 15 v. VITAMIN SHOPPE, INC., Defendant. 16 17 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Plaintiff, 13 14 Case No.: 3:17-cv-01590-BEN-KSC Before the Court is the motion to dismiss filed by Defendant Vitamin Shoppe, Inc. 18 (“Vitamin Shoppe”). (Docket No. 6.) The motion is fully briefed. For the reasons that 19 follow, Defendant’s motion is GRANTED. BACKGROUND1 20 21 Defendant Vitamin Shoppe distributes, markets, and sells “Garcinia Cambogia 22 Extract” (the “Product”) nationwide, including the State of California. In February 2017, 23 Plaintiff Andrea Nathan purchased a 180-caplet bottle of the Product from Defendant in 24 San Diego, California for approximately $20. The Product’s label stated “Weight 25 Management” and “Appetite Control,” which led Nathan to believe “the Product was an 26 27 The following overview of the facts are drawn from the allegations of Plaintiff’s Complaint (Docket No. 1-2, Ex. C, “Compl.”). The Court is not making factual findings. 1 28 1 3:17-cv-01590-BEN-KSC 1 effective dietary aid that would provide weight-loss benefits and would help her lose 2 weight and help her control her appetite.” (Compl. ¶¶ 74-75.) At the time she purchased 3 the Product, Nathan “was seeking a product . . . that aids in weight loss.” (Id. ¶ 76.) 4 Nathan alleges “[t]he representations on the Product’s label were and are false and 5 misleading, and had the capacity, tendency, and likelihood to confuse or confound 6 Plaintiff and other consumers acting reasonably (including the putative Class) because . . 7 . the Product cannot deliver the purported benefits and is no more effective than a 8 placebo.” (Id. ¶ 77.) This lawsuit followed. 9 PROCEDURAL HISTORY 10 On June 26, 2017, Plaintiff filed this action in the San Diego Superior Court2 11 asserting individual and putative class state-law claims for violation of California’s 12 Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and for 13 breach of express and implied warranties. On August 25, 2017, Defendant removed the 14 action to this Court based on diversity jurisdiction. (Docket No. 1.) Defendant now 15 moves to dismiss.3 (Docket No. 6.) 16 LEGAL STANDARD 17 Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint 18 if, taking all factual allegations as true, the complaint fails to state a plausible claim for 19 relief on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. 20 Twombly, 550 U.S. 544, 556-57 (2007). Dismissal is appropriate if the complaint fails to 21 state enough facts to raise a reasonable expectation that discovery will reveal evidence of 22 the matter complained of, or if the complaint lacks a cognizable legal theory under which 23 relief may be granted. Twombly, 550 U.S. at 556. 24 25 2 26 27 28 Case No. 37-2017-00023258-CU-BT-CTL. Defendant also asks the Court to take judicial notice of various documents in support of its position, of which Plaintiff objects to some, but not all. (See Docket Nos. 6-1, 6-2, 7-1.) The Court does not rely on any of the materials for which judicial notice is sought and therefore all requests for judicial notice are denied as moot. 3 2 3:17-cv-01590-BEN-KSC 1 “A claim is facially plausible ‘when the plaintiff pleads factual content that allows 2 the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.’” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Iqbal, 556 4 U.S. at 678). While the Court must draw all reasonable inferences in the non-movant’s 5 favor, it need not “necessarily assume the truth of legal conclusions merely because they 6 are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 7 F.3d 1136, 1139 (9th Cir. 2003) (internal quotations omitted). “Threadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Iqbal, 556 U.S. at 678. 10 11 12 DISCUSSION A. “Lack of Substantiation” Claims In essence, the theory of liability for each of Plaintiff’s claims under California’s 13 Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumer Legal 14 Remedies Act (“CLRA”) is the general assertion that Defendant’s Product is incapable of 15 providing weight-loss benefits, and therefore the Product label’s phrases “Weight 16 Management” and “Appetite Control” are false and misleading. Defendant argues that 17 these claims must be dismissed because they are based entirely upon substantiation 18 allegations for which there exists no private right of action. The Court agrees.4 19 The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and 20 unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. 21 The FAL makes it unlawful for a business to disseminate any statement “which is untrue 22 or misleading, and which is known, or which by the exercise of reasonable care should be 23 known, to be untrue or misleading.” Cal. Bus. & Prof. Code § 17500. The CLRA 24 prohibits any “unfair methods of competition and unfair or deceptive acts or practices 25 26 27 Because the Court agrees with this argument, it does not reach Defendant’s alternative arguments for dismissal of Plaintiff’s UCL, FAL, and CLRA claims. 4 28 3 3:17-cv-01590-BEN-KSC 1 undertaken by any person in a transaction intended to result or which results in the sale or 2 lease of goods or services to any consumer.” Cal. Civ. Code § 1770. 3 Private litigants may not bring suit under the UCL, FAL, or CLRA alleging only 4 that advertising claims lack substantiation. See Nat’l Council Against Health Fraud, Inc. 5 v. King Bio Pharm., Inc., 107 Cal. App. 4th 1336, 1342 (2003); Stanley v. Bayer 6 Healthcare LLC, 2012 WL 1132920, at * 3 (S.D. Cal. 2012). That right is reserved to 7 “the Director of Consumer Affairs, the Attorney General, any city attorney, or any district 8 attorney.” Cal. Bus. & Prof. Code § 17508. As a result, private litigants must allege 9 actual falsity or misrepresentation for their UCL, FAL, and CLRA, and may do so by 10 citing to “testing, scientific literature, or anecdotal evidence.” Alvarez v. NBTY, Inc., No. 11 17-CV-00567-BAS-BGS, 2017 WL 6059159, at *8 (S.D. Cal. Dec. 6, 2017) (quoting 12 Kwan v. SanMedica Int’l, LLC, 854 F.3d 1088, 1095-96 (9th Cir. 2017)). 13 In the false advertising context, an advertising claim is false if it has “actually been 14 disproved,” that is, if the plaintiff can point to evidence that directly conflicts with the 15 claim. Eckler v. Wal–Mart Stores, Inc., 2012 WL 5382218, at *3 (S.D. Cal. Nov. 1, 16 2012). By contrast, an advertising claim that merely lacks evidentiary support is said to 17 be unsubstantiated. Id. (“There is a difference, intuitively, between a claim that has no 18 evidentiary support one way or the other and a claim that’s actually been disproved. In 19 common usage, we might say that both are ‘unsubstantiated,’ but the caselaw (and 20 common sense) imply that in the context of a false advertising lawsuit an 21 ‘unsubstantiated’ claim is only the former.”). 22 Plaintiff alleges the Product contains false and misleading statements because the 23 phrases “Weight Management” and “Appetite Control” appear on the label, in spite of the 24 fact that its only active ingredients Garcinia Cambogia Extract/Hydroxycitric Acid 25 (“HCA”) and chromium “are scientifically proven to be incapable of providing such 26 weight-loss benefits.” (Compl. ¶ 1.) The first problem with Plaintiff’s complaint is her 27 assertion that the phrases “Weight Management” and “Appetite Control” equate to 28 representations that the Product provides weight-loss benefits. “Weight Management” 4 3:17-cv-01590-BEN-KSC 1 suggests management or control of one’s weight, whose upward or downward departure 2 may differ depending on an individual person’s goals, i.e., to gain, lose, or maintain one’s 3 weight. “Appetite Control” indicates control of one’s appetite, which may or may not 4 ultimately result in weight-loss. Thus, it is irrelevant whether the alleged studies 5 disprove that the active ingredients in the Product can produce weight-loss benefits 6 because the phrases themselves do not inherently promise weight-loss benefits. 7 Moreover, Plaintiff does not allege any other statements, advertising, or other 8 communications by Defendant promoting the Product as a weight-loss supplement. 9 Instead, she merely provides her own subjective belief of the type of supplement and 10 benefits she was looking for at the time she purchased the Product and attributed the 11 same to the product. As a result, this alleged deficiency cannot serve as the basis for 12 Plaintiff’s UCL, FAL, or CLRA claims. 13 The second problem with Plaintiff’s complaint is that the only study that directly 14 addresses the representations at issue (i.e. “weight management” and “appetite control”) 15 merely states that its results “did not support the hypothesis that HCA supplementation 16 may be effective on appetite and weight control by increasing fat oxidation.” (Compl. ¶ 17 38) (emphasis added.) The Court finds this qualifying language is not sufficient to raise a 18 plausible claim or falsity or a misrepresentation.5 Alvarez, 2017 WL 6059159, at *8. All 19 other studies referenced in Plaintiff’s complaint discuss the effectiveness of Garcinia 20 Cambogia Extract/Hydroxycitric Acid (“HCA”) or chromium supplementation for 21 weight-loss only. In other words, the studies do not discuss the overall effectiveness of 22 weight management or appetite control from all perspectives, i.e., weight gain, loss, and 23 maintenance. 24 25 26 27 28 The Court notes that Plaintiff further quoted this study as stating: “HCA was not effective.” (Compl. ¶41.) By not providing context for this quotation (i.e., what HCA was supposed to be effective at), the Court is left to speculate whether the study actually rendered a conclusion to support her claim, which is also insufficient to state a claim. 5 5 3:17-cv-01590-BEN-KSC 1 Therefore, the Court finds Plaintiff has not alleged sufficient facts to state plausible 2 claims under the UCL, FAL, or CLRA, and Defendant’s motion to dismiss these claims 3 is GRANTED. 4 B. Breach of Warranties Claims 5 In addition to state consumer protection claims, Plaintiff alleges two breach of 6 warranty claims: (1) breach of express warranty and (2) breach of the implied warranty of 7 merchantability. Defendants also move to dismiss each of these claims, which the Court 8 addresses in turn. 9 1. 10 Breach of Express Warranty California Commercial Code § 2313, which defines express warranty, applies to 11 “transactions in goods.” Viggiano v. Hansen Nat. Corp., 944 F. Supp. 2d 877, 893 (C.D. 12 Cal. 2013) (quoting Cal. Com. Code § 2102). To prevail on a breach of express warranty 13 claim, a plaintiff must prove that the seller “(1) made an affirmation of fact or promise or 14 provided a description of its goods; (2) the promise or description formed part of the 15 basis of the bargain; (3) the express warranty was breached; and (4) the breach caused 16 injury to the plaintiff.” Id. at 893 (quoting Rodarte v. Philip Morris, Inc., No. 03– 17 0353FMC, 2003 WL 23341208, *7 (C.D. Cal. June 23, 2003)). Here, Plaintiff ambiguously alleges “Defendant breached the express warranties by 18 19 selling a product that does not and cannot provide the promised benefits.” (Compl. ¶ 20 132.) However, looking at Plaintiff’s complaint in its entirety, the only “promised 21 benefits” Plaintiff identifies are “weight-loss benefits,” which the Court explained above 22 is not reasonably inferred from the standalone phrases “Weight Management” and 23 “Appetite Control.” Finding the complaint deficient of a plausible actionable promise, 24 the Court GRANTS Defendant’s motion to dismiss Plaintiff’s breach of express warranty 25 claim. 26 2. 27 “Unless excluded or modified [ ], a warranty that goods shall be merchantable is 28 Breach of Implied Warranty of Merchantability implied in a contract for their sale if the seller is a merchant with respect to goods of that 6 3:17-cv-01590-BEN-KSC 1 kind.” Viggiano, 944 F. Supp. 2d at 895 (quoting Cal. Comm. Code § 2314(1)). “The 2 [California] Commercial Code does not ‘impose a general requirement that goods 3 precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of 4 quality.’” Id. at 896 (quoting Hauter v. Zogarts, 14 Cal. 3d 104, 117 (1975)). “A 5 plaintiff who claims a breach of the implied warranty of merchantability must show that 6 the product ‘did not possess even the most basic degree of fitness for ordinary use.’” Id. 7 (quoting Mocek v. Alfa Leisure, Inc., 114 Cal. App. 4th 402, 406 (2003). 8 Similar to its breach of express warranty claim, Plaintiff’s claim for breach of the 9 implied warranty of merchantability relies on its vague allegation that “the Product does 10 not aid in weight management and appetite control.” (Compl. ¶138.) However, as 11 discussed above, Plaintiff’s complaint does not allege that the product does not aid in 12 weight management or control. Rather, the gravamen of Plaintiff’s complaint is that the 13 Product fails to provide allegedly promised “weight-loss benefits.” Thus, dismissal for 14 failure to state a plausible claim is also appropriate for Plaintiff’s breach of the implied 15 warranty of merchantability claim because she has not identified a plausible actionable 16 promise. Defendant’s motion to dismiss this claim is GRANTED. 17 CONCLUSION 18 For all of the foregoing reasons, the Court finds Plaintiff has failed to allege 19 sufficient facts for each of her claims, and Defendant’s motion to dismiss Plaintiff’s 20 complaint is GRANTED. However, the Court shall provide Plaintiff with an opportunity 21 to amend her pleading to correct the deficiencies identified in this Order. Therefore, 22 Plaintiff’s complaint is DISMISSED without prejudice. If Plaintiff elects to amend her 23 pleading, it must be filed by no later than seven (7) days from the date of this Order. 24 25 IT IS SO ORDERED. Dated: February 12, 2018 26 27 28 7 3:17-cv-01590-BEN-KSC

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