Decided: June 19, 2015
The Fourth Circuit determined that marketing statements that accurately describe the findings of duly qualified and reasonable scientific experts are not literally false; and therefore, there was no violation of consumer protection laws in different states.
This appeal stemmed from the district court’s dismissal of the plaintiffs’ claim alleging that GNC and Rite Aid violated the consumer protection laws of various states by marketing certain supplements as promoting joint health. Plaintiffs purchased a variety of joint health supplements produced by GNC and Rite Aid. GNC sells this product under the brand name TriFlex, and Rite Aid sells a similar product produced by GNC. GNC is obligated to indemnify Rite Aid for any claims regarding these products. These supplements contain the compounds glucosamine hydrochloride and chondroitin as well as other ingredients including beneficial herbs. The TriFlex and Rite Aid products represent that the supplements “promote joint mobility & flexibility.” Additionally, the product label states that it was “[c]linically studied” and the results were presented in a chart on the supplement bottle.
Several plaintiffs purchased these products in a number of different states and brought suit because they allege that the products are incapable of providing the advertised joint health benefits, and that they would not have purchased these products but for the companies’ false advertising. Specifically, plaintiffs allege that the representations on the packaging qualifies as false because the majority of scientific evidence indicates that glucosamine and chondroitin are ineffective at treating the symptoms of osteoarthritis.
In order to have a viable claim under the different state consumer protection statutes, the plaintiffs must plead facts in which it can be inferred that the representations made on the packaging of the products were false, misleading, or deceptive. A plaintiff is required to show either (a) that the representation is literally false or (b) that the representation is literally true but nevertheless misleading. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997). A plaintiff arguing that a representation is misleading must show extrinsic evidence of actual consumer confusion. See Scotts Co. v. United Indus. Corp., 315 F.3d 264, 272-73 (4th Cir. 2002). However, if it is assumed to be false, it is assumed that the representation is also misleading. Id. In this case, plaintiffs only alleged that the representations were false, and at no time did plaintiffs argue that the representations were literally true but misleading. Therefore, the Fourth Circuit determined whether the representations were literally false.
The Fourth Circuit held that the plaintiffs failed to allege that the representations were literally false. Plaintiffs did not allege that all scientists agree that the chemical compounds are ineffective at providing the promised joint health benefits. Instead, plaintiffs alleged that the vast weight of evidence shows that it was not beneficial. The Fourth Circuit determined that when “litigants concede that some reasonable and duly qualified scientific experts agree with a scientific proposition, they cannot also argue that the proposition is ‘literally false.’” Therefore, in order to state a false advertising claim on a theory that false representations have been made, plaintiffs must allege that all reasonable experts in the field agree that the representations are false.
Austin T. Reed