November 19, 2018

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“I’ll Be Back;” Ninth Circuit Gives Arnold Schwarzenegger-Branded Supplement Purchasers Another Shot to Pursue UCL, FAL, CLRA and Warranty Claims

In Durnford v. MusclePharm Corp., plaintiff Durnford asserted that the company’s “Arnold Schwarzenegger Series Iron Mass” supplements are falsely labeled because the protein content of the supplements is misstated. Durnford brought claims under California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”) Consumer Legal Remedies Act (“CLRA”) and for breach of express warranty. The district court dismissed these claims, finding them preempted by federal law. However, the Ninth Circuit affirmed in part and reversed in part the district court’s dismissal of Durnford’s claims effectively reviving them, albeit on a narrower basis. Durnford v. MusclePharm Corp., No. 16-15374, __ F.3d __ (9th Cir. 2018), 2018 U.S. App. LEXIS 28771.

Durnford’s complaint challenged the protein content of the supplements on two grounds. First, he alleged that the company inflated the protein content/amount by adding nitrogen compounds, a practice known as “nitrogen spiking” (the “Protein Content Claim”). He also alleged that the Iron Mass supplement contained less than half the promised content of “hydrolyzed beef protein and lactoferrin protein”(the “Protein Composition Claim”).

The Ninth Circuit affirmed the district court’s decision that the Food, Drug, and Cosmetic Act (“FDCA”) preempted Durnford’s Protein Content Claim. The FDCA requires that a food product’s label state the product’s total protein content. Related FDA regulations provide that the protein content may be calculated based on the product’s nitrogen content. Because nitrogen can be used as a proxy for determining protein content, “a claim that would permit a state to impose requirements for the measurement of protein for purposes of the federal mandated nutrition panel different from those permitted under the FDCA – is preempted.”

The court found that Durnford’s Protein Composition Claim was not preempted. Durnford alleged that the supplement’s label misled him into believing that the protein came entirely from genuine protein sources – hydrolyzed beef protein and lactoferrin – rather than nitrogen-spiking agents. The Court reasoned that federal law only addressed the amount of protein, not the asserted source of such protein.

Below, the district court had accepted the possibility that the label created a false or misleading impression in this respect but held that Durnford’s claims were preempted because he did not allege that he had any independent study contradicting the label or the application of the FDA regulations. The Ninth Circuit stated that the district court misapprehended Durnford’s Protein Composition Theory which did not rely on “the misleading nature of nitrogen spiking but on the label’s misleading suggestion that all of the protein . . . comes from specific protein sources.” According to the Ninth Circuit, “Durnford’s complaint adequately alleges facts necessary to support a consumer claim premised on his protein composition theory of misbranding.” Accordingly, the dismissal of his claims UCL, FAL, CLRA and breach of warranty claims based on his Protein Composition Claim was reversed.

While preemption is a powerful defense, the Ninth Circuit may interpret the doctrine narrowly to permit false labeling claims to withstand a pleading challenge.

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Robert Guite, business litigation attorney, Sheppard Mullin law firm, San Francisco office
Partner

Rob Guite is a partner in the Business Trial Practice Group in the firm's San Francisco office.

Areas of Practice

Mr. Guite focuses his litigation practice on class actions, involving ERISA, insurance, false advertising, commercial, construction and products liability matters. He regularly represents employers/plan sponsors, plan administrators and insurers in ERISA and fiduciary litigation involving health and welfare benefits, retirement benefits and compensation plans defending claims brought by individual participants or beneficiaries. In addition, Mr....

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Meyer, associate, orange county, construction, litigation
Associate

Abby Meyer is an associate in the Business Trial Practice Group in the firm’s Orange County office, and a member of the firm’s Construction, Food & Beverage, and Consumer Class Action teams.

Ms. Meyer represents clients facing or pursuing complex litigation arising from software implementations, construction, and real estate projects, including alleged construction defect and business disputes. These matters have included claims for breach of contract, lender liability, fraud, and misrepresentation, among other claims. Ms. Meyer has represented software companies, software developers, energy companies, and financial institutions on such matters.

714-513-5100