Toback v. GNC Holdings, Inc. et al

Filing 37

ORDER granting 14 Motion to Dismiss. Signed by Judge James I. Cohn on 9/13/2013. (ns)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-80526-CIV-COHN/SELTZER
ROBERT TOBACK, on behalf of himself and
all others similarly situated,
Plaintiff,
v.
GNC HOLDINGS, INC., GNC
CORPORATION, GENERAL NUTRITION
CORPORATION, and GENERAL NUTRITION
CENTERS, INC.,
Defendants.
/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Complaint [DE 14] (“Motion”). The Court has carefully considered the Motion, Plaintiff’s
Opposition [DE 18], Defendants’ Reply [DE 27], and Plaintiff’s two Notices of
Supplemental Authority [DE 30 & 34], and is otherwise fully advised in the premises.
I.

BACKGROUND

Plaintiff Robert Toback (“Plaintiff”) filed a class action complaint against
Defendants GNC Holdings, Inc., GNC Corporation, General Nutrition Corporation, and
General Nutrition Centers, Inc. (“Defendants”) on May 22, 2013. See Compl. [DE 1].
The Complaint concerns the sale of Defendants’ “TriFlex” line of products, which
Defendants advertise as promoting joint health and function. Id. ¶ 25. Plaintiff alleges
that the TriFlex products do not in fact promote joint health and function. Id. ¶ 46.
Plaintiff cites numerous studies allegedly demonstrating that two common ingredients of
the TriFlex products, glucosamine and chondroitin, are ineffective for such a purpose.

Id. ¶ 29. Plaintiff alleges that Defendants “knew, or should have known, that the
representations that their TriFlex products help repair, regenerate, maintain, preserve,
replace, renew, or rebuild cartilage were untrue.” Id. ¶ 46. More specifically, Plaintiff
states that he purchased a TriFlex product called TriFlex Vitapak. Id. ¶ 34. Plaintiff
alleges that the TriFlex Vitapak did not help to repair or preserve his cartilage, and that
he was harmed as a result. Id. ¶¶ 34-35, 48. Plaintiff, on his own behalf and on behalf
of similarly situated Florida consumers, brings a single cause of action against
Defendants for violations of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”). See Fla. Stat. §§ 501.201-.213. Defendants have moved to dismiss.
II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a court shall grant a motion to
dismiss where the factual allegations of the complaint cannot support the asserted
cause of action. Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006).
“Factual allegations must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a complaint must
contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570).
Nonetheless, a complaint must be liberally construed, assuming the facts alleged
therein as true and drawing all reasonable inferences from those facts in the plaintiff’s
favor. Twombly, 550 U.S. at 555. A complaint should not be dismissed simply because
the court is doubtful that the plaintiff will be able to prove all of the necessary factual
allegations. Id. Accordingly, a well pleaded complaint will survive a motion to dismiss

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“even if it appears that a recovery is very remote and unlikely.” Id. at 556 (internal
quotation marks omitted).
III.

ANALYSIS

In their Motion, Defendants argue that this Court should dismiss the Complaint
for the following reasons: (1) the Complaint does not meet Federal Rule of Civil
Procedure 9(b)’s heightened pleading standard for fraud; (2) the Complaint does not
allege falsity but only lack of substantiation, which cannot support a claim for violation of
FDUTPA; (3) studies cited by Plaintiff do not contradict the represented health benefits
of TriFlex products; (4) Plaintiff does not have standing to bring claims relating to
products other than the TriFlex Vitapak; and (5) Plaintiff only alleges that two of the
many ingredients of the TriFlex Vitapak are ineffective for their represented purpose.
The Court will address each argument in turn.
A. Plaintiff Need Not Plead with Particularity
Defendants argue throughout their Motion that the Complaint is deficient because
it does not comport with the particularity requirements of Federal Rule of Civil
Procedure 9(b). However, “[t]he requirements of Rule 9(b) do not apply to claims under
the FDUTPA.” Galstaldi v. Sunvest Cmties. USA, LLC, 637 F. Supp. 2d 1045, 1058
(S.D. Fla. 2009). Rule 9(b)’s requirements are implicated by allegations of fraud, but
because FDUTPA was enacted to provide remedies for conduct outside the reach of
traditional common law torts like fraud, “the plaintiff need not prove the elements of
fraud to sustain an action under the statute.” Id. (quoting Florida v. Tenet Healthcare
Corp., 420 F. Supp. 2d 1288, 1310 (S.D. Fla. 2005)). Accordingly, failure to meet the
heightened pleading requirements of Rule 9(b) cannot serve as a basis to dismiss
FDUTPA claims. Id.; see also Office of A.G., Dep’t of Legal Affairs v. Wyndham Int’l,
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Inc., 869 So. 2d 592, 598 (Fla. 1st D.C.A. 2004) (“A deceptive or unfair trade practice
constitutes a somewhat unique tortious act because, although it is similar to a claim of
fraud, it is different in that, unlike fraud, a party asserting a deceptive trade practice
claim need not show actual reliance on the representation or omission at issue.”).1
In finding that Rule 9(b) is inapplicable here, the Court rejects Defendants’
contention that Plaintiff’s reference to Defendants collectively as “GNC” throughout the
Complaint is group pleading that requires dismissal. Defendants argue that Rule 9(b)
requires Plaintiff to allege separately which deceptive acts Plaintiff attributes to each
Defendant. See Motion at 18-19. Federal Rule of Civil Procedure 8, however, which
provides the applicable pleading standard, only requires a short, plain statement of each
claim that gives the defendant “fair notice of what the . . . claim is and the grounds upon
which it rests.” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Though Plaintiff refers to Defendants collectively as “GNC,” he has alleged
sufficient factual detail to put Defendants on notice of the nature of the claims against
them, satisfying the requirements of Rule 8. See, e.g., Frazier v. U.S. Bank Nat’l Ass’n,

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The Court acknowledges that other courts within this district have reached the
opposite result. See, e.g., Llado-Carreno v. Guidant Corp., No. 09-20971, 2011 U.S.
Dist. LEXIS 17088, at *14-15 (S.D. Fla. Feb. 22, 2011) (finding Rule 9(b) does apply to
FDUTPA claims). However, this Court has previously held that Rule 9(b) does not
apply to FDUTPA claims and the Court is not persuaded that it should reconsider this
position. See Costa v. Kerzner Int’l. Resorts, Inc., No. 11-60663, 2011 U.S. Dist. LEXIS
66921, at *6-7 (S.D. Fla. June 23, 2011).
Defendants also rely heavily on this Court’s opinion in Jovine v. Abbott
Laboratories, Inc., 795 F. Supp. 2d 1331 (S.D. Fla. 2011), in arguing that specificity is
required in pleading a FDUTPA claim. See Motion at 15. The Court’s discussion of
Rule 9(b) in Jovine, however, referred to whether the plaintiff’s vague allegations of
“fraudulent conduct” in relation to a defendant’s sale of allegedly unsafe infant formula
supported a claim for relief, as opposed to pleading standards under FDUTPA relating
to misrepresentative advertising. See Jovine, 795 F. Supp. 2d at 1343 n.9.
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No. 11-8775, 2013 U.S. Dist. LEXIS 45330, at *10-12 (N.D. Ill. Mar. 29, 2013) (holding
that group pleading did not render complaint infirm under Rule 8 where complaint
provided fair notice of claims); FTC v. Sterling Precious Metals, LLC, No. 12-80597,
2013 U.S. Dist. LEXIS 20879, at *11-12 (S.D. Fla. Feb. 14, 2013) (rejecting motion
seeking dismissal based upon group pleading). Indeed, Defendants have demonstrated
their understanding of the Complaint’s allegations against them in a brief discussion in
their Reply of the interrelated corporate Defendants’ roles with regard to the distribution
of TriFlex products. Reply at 10.
Similarly, the Court rejects Defendants’ argument that Plaintiff’s failure to plead
causation with specificity requires dismissal. Defendants argue that Plaintiff has failed
to plead which representations regarding the health benefits of TriFlex he was exposed
to, in addition to when and where that exposure occurred, and thus he has failed to
plead the element of causation with the requisite specificity. Motion at 14-15. As
discussed above, no such specificity is required of Plaintiff in pleading a claim under
FDUTPA.
Florida’s state courts have not defined a clear causation standard under
FDUTPA. See Gavron v. Weather Shield Mfg., Inc., 819 F. Supp. 2d 1297, 1301
(S.D. Fla. 2011) (discussing “discordant decisions” in Florida courts regarding causation
element). Nevertheless, the Eleventh Circuit has held that the element of causation is
met when the alleged misrepresentations would have deceived an objectively
reasonable person. Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1283 (11th Cir. 2011).
Because Plaintiff has pleaded facts suggesting that the representations at issue would
have deceived reasonable consumers (see Compl. ¶¶ 17, 32-35, 45), he has sufficiently

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alleged causation. See Gavron, 819 F. Supp. 2d at 1301 (finding causation adequately
pleaded when plaintiff alleged that misrepresentations would have deceived objectively
reasonable person); see also Nelson v. Mead Johnson Nutrition Co., 270 F.R.D. 689,
692 & n.2 (S.D. Fla. 2010) (noting that deceptive marketing may injure consumers even
without individual reliance upon misrepresentations where misrepresentations result in
higher prices).
B. Plaintiff Alleges More than Lack of Substantiation
Defendants characterize the Complaint as alleging that no scientific studies
substantiate Defendants’ representations regarding the TriFlex line. Motion at 7-8.
Defendants argue that a plaintiff alleging a FDUTPA violation must plead that the
representations at issue were affirmatively false and misleading, and not merely
unsubstantiated. Id. at 7. Defendants thus argue that Plaintiff’s claim must fail.
Id. at 7-8.
Though some states’ consumer fraud statutes do not recognize a cause of action
for lack of substantiation, it is unclear that such a claim is unavailable under FDUTPA.
In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig.,
No. 12-02324, 2013 U.S. Dist. LEXIS 105830, at *79 n.12 (S.D. Fla. July 24, 2013).
Plaintiff’s Complaint, however, does more than merely allege that Defendants’
representations were unsubstantiated. Plaintiff affirmatively alleges that studies have
shown glucosamine and chondroitin, two ingredients of the TriFlex products, to be
ineffective in promoting joint health. Compl. ¶ 29. For example, Plaintiff alleges that
one cited study “conclusively prov[ed] that the ingestion of glucosamine could not affect
the growth of cartilage,” and another article found that “there was ‘little or no evidence’
to suggest that glucosamine was superior to a placebo even in slowing down cartilage
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deterioration.” Id. In other words, Plaintiff goes further than alleging that Defendants
have failed to substantiate their representations with scientific evidence, but instead
alleges that scientific evidence exists to contradict Defendants’ representations and
demonstrate their falsity. See Eckler v. Wal-Mart Stores, Inc., No. 12-727, 2012 U.S.
Dist. LEXIS 157132, at *4-11 (S.D. Cal. Oct. 31, 2012) (distinguishing between
“unsubstantiated” representations lacking support and representations that are
contradicted). The Court thus finds that the Complaint does not fail for alleging mere
lack of substantiation.
C. The Complaint Alleges TriFlex Is
Ineffective with Respect to the Stated Benefits
Defendants argue that the studies Plaintiff cites in his Complaint only address the
impact of glucosamine or chondroitin on the disease osteoarthritis. Motion at 10-11.
Defendants contend they did not represent that TriFlex products were intended for
treatment of any disease such as osteoarthritis, and instead represented that the
products would only improve joint comfort, flexibility, or function. Id. Defendants thus
argue that Plaintiff’s studies are inapposite and cannot raise the Complaint’s allegations
of misrepresentation above the speculative level. Id. Defendants’ argument is incorrect
as a factual matter, because Plaintiff has referenced in his Complaint not only studies
suggesting the inefficacy of glucosamine or chondroitin in treating osteoarthritis, but
also studies and articles addressing the inefficacy of ingested glucosamine or
chondroitin with relevance to broader joint health and function. See Compl. ¶ 29 (citing
Jeremiah E. Silbert, Dietary Glucosamine Under Question, 19 Glycobiology 564 (2009);

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S.G. Kirkham & R.K. Samarasinghe, Glucosamine, 17 J. Orthopaedic Surgery 72
(2009)).2
D. Plaintiff’s Standing Is Limited to Claims Regarding the TriFlex Vitapak
Defendants argue that, because Plaintiff only alleges that he purchased the
TriFlex Vitapak, Plaintiff lacks standing to pursue claims with respect to other products
in the TriFlex product line. Motion at 16-17. Defendants correctly note that many
federal courts have dismissed consumer protection claims in class action complaints
based upon products the class representative did not purchase. See, e.g., Pearson v.
Target Corp., No. 11-7972, 2012 U.S. Dist. LEXIS 187208, at *3-4 (N.D. Ill. Nov. 9,
2012) (dismissing claims relating to certain glucosamine and chondroitin products in line
not purchased by class representative). A similarly large number of federal courts,
however, have held that whether a class representative has standing to maintain a
consumer class action relating to an entire product line, despite having only purchased
a subset of those products, is a question more appropriate for resolution at the classcertification stage. See, e.g., Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984, 991-92
(E.D. Cal. 2012) (deferring until class-certification stage determination of whether class
representative could present claims based upon products he did not buy).
Some courts have discussed the issue in terms of Article III standing—properly
the subject of a motion to dismiss—as compared with class standing to be determined

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Defendants also contest Plaintiff’s reading of the cited studies. Motion at 12.
This disagreement over interpretation of research, however, is a factual issue
inappropriate for resolution on a motion to dismiss, see In re Horizon Organic Milk, 2013
U.S. Dist. LEXIS 105830, at *6 n.1 (taking plaintiffs’ contentions regarding study findings
as true at motion to dismiss stage), where all reasonable factual inferences must be
drawn in favor of the plaintiff. See Twombly, 550 U.S. at 555.
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at the class-certification stage. See In re Frito-Lay N. Am., Inc., No. 12-2413, 2013 U.S.
Dist. LEXIS 123824, at *34-42 (E.D.N.Y. Aug. 29, 2013). In allowing named plaintiffs to
maintain a consumer class action involving products they did not purchase, the court in
In re Frito-Lay North America, Inc. drew upon decisions of the Second Circuit holding
that Article III standing may not be strictly required of each claim, and class standing
may be established during the class-certification stage as long as there is at least one
named plaintiff with Article III standing to assert some claim against each defendant.
Id. at *34-35. By way of contrast, the law in the Eleventh Circuit is clear that at least
one named plaintiff must establish Article III standing for each class subclaim.
Prado-Steiman v. Bush, 221 F.3d 1266, 1279-80 (11th Cir. 2000). In other words,
Article III standing of a named plaintiff must be established on a claim-by-claim basis
within the Eleventh Circuit, and deferring the standing determination to the classcertification stage will yield no different result.
The Article III standing analysis requires a plaintiff to demonstrate that he has
suffered an injury-in-fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Because Plaintiff alleges that he purchased the TriFlex Vitapak, but not other TriFlex
products, he has failed to plead that he suffered any injury with regard to products other
than the TriFlex Vitapak. See Guerrero v. Target Corp , 889 F. Supp. 2d 1348, 1353-54
(S.D. Fla. 2012) (standing satisfied for FDUTPA claim where plaintiff purchased product
forming basis of claim). Plaintiff therefore cannot establish his Article III standing with
respect to any product other than the Vitapak, see Lujan, 504 U.S. at 560-61, and
cannot raise claims relating to those other products which he did not purchase,

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see Prado-Steiman, 221 F.3d at 1279-80. The claims Plaintiff has standing to bring are
therefore limited to those relating to the TriFlex Vitapak.
E. The Complaint Fails to Raise Allegations
Regarding the TriFlex Vitapak Above the Speculative Level
Finally, Defendants argue that Plaintiff has failed to plead a claim for violations of
FDUTPA because Plaintiff only alleges that two discrete components of the TriFlex
Vitapak—glucosamine and chondroitin—are ineffective in promoting joint health and
function. Motion at 9. Defendants argue that the Complaint does not address a host of
other components of the TriFlex Vitapak that Defendants contend contribute to the
efficacy of the product. Id. at 9-10. Because of the disconnect between the substances
Plaintiff claims are ineffective and the substances contained within the TriFlex Vitapak,
Defendants argue that the facts as pleaded fail to support an inference that the Vitapak
is ineffective for its represented purpose. Id. Plaintiff responds that the “alchemy of
adding some other ingredients to the glucosamine and chondroitin” in TriFlex products
will not “miraculously” render the products effective. Opp’n at 13 n.3. Plaintiff states
that he also knows the Vitapak to be ineffective because he ingested the Vitapak and “it
did not improve his condition.” Id. at 16-17.
The breadth of ingredients in the TriFlex Vitapak contrasted with the Complaint’s
laser-like focus on the shortcomings of glucosanmine and chondroitin poses a problem
for Plaintiff. In addition to glucosamine and chondroitin, the TriFlex Vitapak includes
cutch tree extract, Chinese skullcap root extract, methylsulfonyl-methane, white willow
bark extract, fish oil, and other substances. Motion Ex. 1.3 By Plaintiff’s own admission,

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The Court may refer to the label of the TriFlex Vitapak attached as an exhibit to
the Motion, as the label is referenced in the Complaint and is central to Plaintiff’s claim.
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Defendants market this product not merely as a glucosamine and chondroitin
supplement, but as a “[c]omprehensive Vitapak program that supports [i]mproved joint
health.” Compl. ¶ 25. Plaintiff’s allegations regarding the inefficacy of glucosamine and
chondroitin simply fail to address the efficacy of the TriFlex Vitapak’s multifarious
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 speculative level.
See Eckler, 2012 U.S. Dist. LEXIS 157132, at *23-24 (dismissing claim for false
advertising relating to glucosamine supplements where studies relied upon by plaintiff to
allege inefficacy of glucosamine did not address broader formulation of supplements at
issue).
Plaintiff’s claim is not salvaged by his conclusory allegation that the Vitapak “did
not help repair or preserve” his cartilage. See Compl. ¶ 35. Though a plaintiff’s factual
allegations must be taken as true on a motion to dismiss, a court need not give
credence to “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements.” Iqbal, 556 U.S. at 678. Plaintiff’s allegation that the
Vitapak did not repair his cartilage, or in other words that it did not function as
advertised, is devoid of any further detail or support. The Complaint does not discuss
why Plaintiff believes the product he consumed did not repair his cartilage or otherwise
elaborate upon the allegation. Without more, Plaintiff’s bare assertion that the Vitapak
did not function as advertised is merely a “legal conclusion couched as a factual
allegation,” Twombly, 550 U.S. at 555, which this Court is not bound to accept as true.

See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.
1997).
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See Arroyo v. Pfizer, Inc., No. 12-4030, 2013 U.S. Dist. LEXIS 13789, at *11-16
(N.D. Cal. Jan. 31, 2013) (rejecting as conclusory plaintiff’s allegations that dietary
supplement “does not support healthy immune function” as advertised, because plaintiff
failed to plead any underlying factual support); Eckler, 2012 U.S. Dist. LEXIS 157132,
at *7 n.2 (finding speculative plaintiff’s conclusory allegation that the glucosamine
product at issue “did not rebuild her cartilage, lubricate her joints or improve her joint
comfort as represented”).
Plaintiff has therefore failed to raise his allegation that the TriFlex Vitapak is
ineffective for its advertised purpose above the speculative level. Because Plaintiff’s
allegations regarding the falsity of Defendants’ representations relating to the TriFlex
Vitapak fail to satisfy the applicable pleading standard of Twombly, 550 U.S. at 555, and
because Plaintiff lacks standing to pursue claims relating to any TriFlex product other
than the Vitapak, Plaintiff has failed to state a claim under FDUTPA.
IV.

CONCLUSION

Based on the foregoing, it is hereby
ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion to Dismiss Plaintiff’s Complaint [DE 14] is GRANTED;
2. The Complaint [DE 1] is DISMISSED without prejudice; and
3. Plaintiff may file an amended complaint on or before September 27, 2013.

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DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 13th day of September, 2013.

Copies provided to:
Counsel of record via CM/ECF

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