U.S. Court of Appeals Reverses Dismissal of Consumer Claims Against Manufacturer of Nutritional Supplements

U.S. Court of Appeals for the 9^th Circuit has reversed a district court’s dismissal of an action alleging consumer claims against MusclePharm Corp., a manufacturer of nutritional supplements, for making false or misleading statements about the protein in one of its products. The case was sent back to the trial court for further proceedings.

The district court dismissed the action as preempted by the Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. ¶¶ 301-399(i), reasoning that any declarations of protein content anywhere on a product label could not be false or misleading if the listed amount of protein reflected measurements made in accordance with federal regulations concerning the federally mandated nutrition panel. The court of appeals held that, as relevant here, the FDCA and its implementing regulations concerned only the calculation and the disclosure of protein amounts. Specifically, the panel held that the FDCA preempted the state-law misbranding theory premised on the supplement’s use of nitrogen-spiking agents to inflate the measurement of protein for the nutrition panel.

The court of appeals held that the FDCA did not, however, preempt a state-law misbranding state-law theory premised on the label’s allegedly false or misleading implication that the supplement’s protein came entirely from two specifically named, genuine protein sources.

The court of appeals concluded that the plaintiff’s claims were not preempted to the extent that they arose under this theory.

The FDCA regulations say nothing about the source or composition of a protein, factors which underlie one of the plaintiff’s several theories of consumer deception. The plaintiff, Tucker Durnford, claimed that his action was not preempted to the extent that they arose under that theory.

MusclePharm is a Nevada corporation that produces a line of nutritional supplements, including the “Arnold Schwarzenegger Series Iron Mass” supplement (“the Supplement”) at issue in this case. Durnford is a California citizen who purchased the Supplement from a sports nutrition retailer in 2014.

The Supplement is marketed as a muscle-building or weight-gain product, with a focus on its “revolutionary 5-stage mass delivery system.” According to the Supplement’s label, this “system” consists of “advanced protein technology, elite complex carbs, healthy fats, cutting-edge performance ingredients and a balanced digestive blend.”

The 5-stage mass delivery system is labeled with some specificity in the packaging.

It is well-known by many that these types of nutritional supplements claiming their use will allow consumers to lose weight, build muscle mass and otherwise become a healthier and more dynamic individual have proven to be false, if not misleading, in many cases.

In this case, the lawsuit was brought under California’s unfair competition law, false advertising law and the Consumer Legal Remedies Act and for breach of expressed warranty.

MusclePharm had moved to dismiss the complaint on the preemption grounds, for failure to plead reliance adequately, and for failure to plead fraud with particularity. The court held that the FDCA, in light of its implementing regulations does not preempt a misbranding theory premised on the label’s allegedly false or misleading implication that the Supplement’s protein came entirely from two specifically named, genuine protein sources. Accordingly, the district court’s order of dismissal was reversed and this case is remanded for further proceedings consistent with the opinion of this court of appeals.

Durnford v. MusclePharm Corp., No. 16-15374 (9^th Cir. 2018).

Kreisman Law Offices has been handling dietary supplements lawsuits, Hydroxycut cases, pharmaceutical defect lawsuits and product liability cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including River Grove, Western Springs, Yorkfield, Villa Park, Maywood, Elmhurst, Elmwood Park, Des Plaines, Evanston, Skokie, Highland Park, Wilmette, Harvey, Calumet City, Chicago (Archer Heights, Brighton Park, Little Village, Lawndale, Garfield Park, Humboldt Park, Hyde Park, Woodlawn, Kenwood, Jackson Park, Washington Park), La Grange Park, Justice and Hickory Hills, Ill.