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In re GNC Corp.

United States Court of Appeals, Fourth Circuit

June 19, 2015

In re: GNC CORPORATION; TRIFLEX PRODUCTS MARKETING AND SALES PRACTICES LITIGATION (NO. II); YVONNE BROWN; SHAWN HOWARD, on hehalf of themselves and all others similarly situated; MICHAEL LERMA, On Behalf of Themselves and All Others Similarly Situated; JEREMY GAATZ, On Behalf of Themselves and All Others Similarly Situated; ROBERT TOBACK; ROBERT CALVERT; THOMAS FLOWERS; JOHN J. GROSS; JUSTIN M. GEORGE; LOUIS LASTRES, on behalf of themselves and all others similarly situated, Plaintiffs - Appellants,
v.
GNC CORPORATION, a Delaware Corporation; GNC HOLDINGS, INC.; RITE AID CORPORATION, Defendants - Appellees

Argued March 25, 2015.

Page 506

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Maryland, at Baltimore. (1:14-md-02491-JFM). J. Frederick Motz, Senior District Judge.

ARGUED:

Robert Jeffrey Berg, DENLEA & CARTON LLP, White Plains, New York, for Appellants.

Joseph R. Palmore, MORRISON & FOERSTER, LLP, Washington, D.C., for Appellees.

ON BRIEF:

E. Duncan Getchell, Jr., Richmond, Virginia, Gordon W. Schmidt, Courtney S. Schorr, MCGUIREWOODS, LLP, Pittsburgh, Pennsylvania, for Appellees.

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Judge Floyd wrote the opinion, in which Judge Niemeyer and Senior Judge Hamilton joined.

OPINION

Page 508

FLOYD, Circuit Judge:

Appellants are consumers who purchased joint health supplements produced and sold by GNC and Rite Aid. The supplements all contain glucosamine and chondroitin, and most contain additional purportedly active ingredients. Appellants allege that GNC and Rite Aid have violated the consumer protection laws of various states by marketing these supplements as promoting joint health, even though many scientific studies have shown that glucosamine and chondroitin are no more effective than a placebo in treating the symptoms of osteoarthritis. GNC and Rite Aid moved to dismiss the complaint for failure to state a claim, arguing that the complaint failed to adequately plead the falsity of the allegedly misleading marketing

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representations. The district court granted the motion in full. Because marketing statements that accurately describe the findings of duly qualified and reasonable scientific experts are not literally false, we affirm.

I.

Michael Lerma, Jeremy Gaatz, Robert Toback, Robert Calvert, Shawn Howard, Thomas Flowers, John Gross, and Justin George (collectively " Plaintiffs" ) purchased a variety of joint health supplements produced by General Nutrition Corporation and GNC Holdings, Inc. (collectively " GNC" ) and Rite Aid Corporation (" Rite Aid" ). In putative class actions filed in federal courts in several states, they alleged that the supplements are ineffective as marketed and that GNC and Rite Aid (" the Companies" ) violated various state consumer protection, deceptive advertising, and express warranty statutes by misrepresenting the effectiveness of the supplements.[1] The Judicial Panel on Multidistrict Litigation transferred three of these actions (and two tag-along actions) to the United States District Court for the District of Maryland for coordinated or consolidated pretrial proceedings. Plaintiffs' counsel established a leadership structure and filed a Consolidated Amended Complaint (CAC), at issue in this appeal.[2] Because this case comes to us on a motion to dismiss for failure to state a claim, we state the facts as alleged in the CAC and assume them to be true. Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 601 (4th Cir. 2015).

GNC manufactures, markets, distributes, and sells a line of joint health dietary supplements under the brand name TriFlex: GNC TriFlex; GNC TriFlex Fast-Acting; GNC TriFlex Sport; and GNC TriFlex Complete Vitapak. All of the products contain the compounds glucosamine hydrochloride and chondroitin sulfate (" glucosamine and chondroitin" ). They also all contain the ingredients methylsulfonyl-methane (MSM) and hyaluronic acid (HA). TriFlex Fast-Acting and TriFlex Sport also contain a variety of purportedly beneficial herbs, including white willow bark extract, hops cones extract, and Chinese skullcap root extract. Finally, TriFlex Complete Vitapak contains tablets of TriFlex Fast-Acting along with separate fish oil, willow bark, and MSM supplements.

The TriFlex product labels represent that the supplements " promote[] joint mobility & flexibility," " protect[] joints from wear and tear of exercise," " rebuild[] cartilage and lubricate[] joints," and provide " [m]aximum strength joint comfort." J.A. 30, 189-93. The product label for TriFlex Fast-Acting also represents that the product was " [c]linically studied" by means of a " 12-week multi-center, randomized, double-blind, placebo controlled study of 60 adults . . . taking 250 mg/day of the GNC TriFlex Fast-Acting Blend" and was " shown to improve joint comfort and function." J.A. 193. The TriFlex Fast-Acting label includes a chart representing that TriFlex Fast-Acting provides a 20% improvement in joint function and 25-30% improvement in joint flexibility. Id.

Rite Aid markets, distributes, and sells a line of house-brand joint health dietary supplements: Rite Aid Glucosamine/Chondroitin; Rite ...


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