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
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.
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 Aid Natural Glucosamine/Chondroitin;
The named plaintiffs purchased several of the GNC and Rite Aid products in a number of states. No plaintiff alleges that he or she was harmed by consuming the products, or that the products did not contain the advertised quantities of glucosamine and chondroitin. Rather, Plaintiffs allege that the products are incapable of providing the advertised joint health benefits, and that they would not have purchased the products but for the Companies' false advertising. They therefore bring suit on behalf of themselves and similarly situated purchasers under the consumer protection laws of their states.
Lerma, a California resident, purchased TriFlex Fast-Acting in California and brings Counts II and III under California's Unfair Competition Law, Cal. Bus. & Prof.Code § 17200 et seq., and Consumers Legal Remedies Act, Cal. Civ.Code § 1750 et seq. Gaatz, an Illinois resident, purchased TriFlex Sport in Illinois and brings Count IV under Illinois's Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et seq. Toback, a Florida resident, purchased TriFlex Complete Vitapak in Florida and brings Count V under the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. Calvert, an Ohio resident, purchased TriFlex Fast-Acting in Ohio and brings Count VIII for breach of express warranty under Ohio's UCC, Ohio Rev. Code Ann. § 1302.26. Howard, a New York resident, purchased TriFlex Fast-Acting in New York and brings Counts VI and VII under New York's deceptive business practices statute, N.Y. Gen. Bus. Law § 349, and false advertising statute, N.Y. Gen. Bus. Law § 350. Flowers, a California resident, purchased unspecified Rite Aid products in California and brings Counts X and XI under California's Unfair Competition Law and Consumers Legal Remedies Act. Gross, a New Jersey resident, purchased unspecified Rite Aid products in New Jersey and brings Count XII under the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1 et seq. And finally, George, a Pennsylvania resident, purchased Rite Aid Natural Glucosamine/Chondroitin in Pennsylvania and brings Count XIII under Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann. § 201-1 et seq.
In essence, Plaintiffs allege that the various health representations made on the products' packaging are false because "the vast weight of competent and reliable scientific evidence" indicates that glucosamine and chondroitin do not provide the promised health benefits. J.A. 33. In support of this conclusion, Plaintiffs cite a number of peer-reviewed published studies that collectively show that "glucosamine and chondroitin[] are ineffective at treating the symptoms of osteoarthritis, whether taken alone or in combination with each other." J.A. 23. Plaintiffs note that while the cited studies were performed on patients with arthritis, "experts in the field
The Companies moved to dismiss the CAC for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted the motion in full. The court found that the plaintiffs had failed to plead that "any reasonable expert would conclude from the cited [scientific] studies that glucosamine and chondroitin are ineffective in non-arthritic consumers," and concluded that under all of the state consumer protection laws at issue in this case, "[i]f there are experts who support what [the Companies] say in their advertisements, the advertisements are not false and misleading...." J.A. 248. In other words, the district court held that a manufacturer cannot be liable for false advertising so long as at least one qualified expert opines that the representations made are truthful, even if the overwhelming weight of scientific evidence is to the contrary.
The district court dismissed the CAC without prejudice and expressly granted the plaintiffs leave to re-file if they could plead (in accordance with Rule 11) that "any reasonable expert would conclude from the cited studies that glucosamine and chondroitin do not improve joint health in non-arthritic consumers." J.A. 249. Plaintiffs declined the court's invitation to amend the CAC and instead timely filed a notice of appeal. We have jurisdiction over final judgments of the district court pursuant to 28 U.S.C. § 1291.
After filing their appeal, Plaintiffs moved for reconsideration by the district court under Rule 60(b)(1) of the Federal Rules of Civil Procedure, arguing that the district court's initial order rested upon a mistake of law.
As a threshold matter, we must determine whether we have jurisdiction to consider Plaintiffs' purported appeal of the September Order. Rule 3 of the Federal Rules of Appellate Procedure requires would-be appellants to timely file a notice of appeal with the Court "designat[ing] the judgment, order, or part thereof being appealed."
Plaintiffs are apparently unaware of the generous tolling provisions of Rule 4 of the Federal Rules of Appellate Procedure, which provides a clear road map for appellants who wish to file a post-judgment motion with the district court before taking their appeal. Appellants who file a motion for reconsideration within 28 days following the district court's entry of judgment may wait to file their notice of appeal until after the disposition of the Rule 60 motion, because the timely filing of the Rule 60 motion tolls the time for filing an appeal. Appellants who miss this 28-day deadline can still file separate notices of appeal within 30 days of each challenged order and then consolidate the appeals. Fed. R.App. P. 4(a)(4)(A)(vi) & (B); see also Fobian v. Storage Tech. Corp., 164 F.3d 887, 891 (4th Cir.1999) (noting that "any appeal from the denial" of a Rule 60 motion "can be consolidated with the appeal from the underlying order"); 16A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure, § 3950.4 (4th ed.2008).
Plaintiffs filed their Rule 60 motion 35 days after the entry of judgment, too late to take advantage of Rule 4 tolling. They also failed to file a separate notice of appeal from the September Order. We therefore grant the Companies' motion to dismiss the appeal of the September Order for want of appellate jurisdiction.
"We review de novo an appeal from a Rule 12(b)(6) dismissal, accepting the complaint as true and drawing reasonable inferences in the [plaintiffs'] favor." Summers v. Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir.2014). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the
In order to state a plausible claim for relief under all of the state consumer protection statutes specified in the CAC, Plaintiffs must plead facts from which we might infer that the representations made on the products' packaging were false, deceptive, or misleading.
The district court held that "[i]f there are experts who support what [the Companies] say in their advertisements, the advertisements are not false and misleading...." J.A. 248. The district court clarified that Plaintiffs should not amend the CAC unless they can plead that "any reasonable expert would conclude from the cited studies that glucosamine and chondroitin do not improve joint health in non-arthritic consumers." J.A. 249. The district court's test — while incorrect in its
The federal Lanham Act creates a private right of action for corporate victims of "false or misleading" descriptions or representations. 15 U.S.C. § 1125(a). Although consumers (such as Plaintiffs) cannot invoke the protections of the Lanham Act, Lexmark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ___ 134 S.Ct. 1377, 1390, 188 L.Ed.2d 392 (2014), the considerable body of federal common law construing the Act is instructive in construing the state laws at issue here. Courts uniformly interpret "false or misleading" as creating two different theories of recovery in a false advertising claim: A plaintiff must allege either (i) that the challenged representation is literally false or (ii) that it is literally true but nevertheless misleading. See, e.g., Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.1997); BASF Corp. v. Old World Trading Co., 41 F.3d 1081, 1089 (7th Cir.1994); Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir. 1993); see also 44 Am.Jur. Proof of Facts 3d 1, § 8 (2015) (collecting cases). A Lanham Act plaintiff arguing that a representation is misleading must produce extrinsic evidence of actual consumer confusion — it is not enough for a court to determine after the fact that a representation could have misled hypothetical consumers. See Scotts Co. v. United Indus. Corp., 315 F.3d 264, 272-73 (4th Cir.2002). However, a plaintiff arguing literal falsity need not produce such evidence. Id. If a representation is false, we assume as a matter of law that it is also misleading.
In construing the diverse state statutes at issue here, we apply this broadly shared understanding of the difference between false and misleading representations. Every statute at issue here imposes liability for misleading representations. Although each state supplies its own test for determining whether true statements are misleading,
Because Plaintiffs elected to plead that the Companies' representations are false rather than true but misleading, we must determine whether the CAC states facts showing that the representations
Plaintiffs urge that it is inappropriate for the court to resolve a "battle of the experts" on the pleadings. However, we need not resolve any "battle of the experts" in order to decide whether the CAC states a claim for false advertising. 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." Either the experts supporting the Companies are unreasonable and unqualified (in which case, there is no real battle of the experts to begin with) or they reflect a reasonable difference of scientific opinion (in which case the challenged representations cannot be said to be literally false). By characterizing the dispute as a battle of the experts, Plaintiffs highlight the CAC's concession that a reasonable difference of scientific opinion exists as to whether glucosamine and chondroitin can provide the advertised joint health benefits.
Plaintiffs also object that our holding today would "permit a manufacturer of the most dubious product to engage an `expert' and then contend it was immune from a consumer fraud action." Appellants' Br. at 18. However, plaintiffs who believe that no reasonable scientist would agree with the challenged representations remain free to make that allegation. Having done the due diligence required by Rule 11 of the Federal Rules of Civil Procedure, they need not fear that the defendant's subsequent production of a surprise expert whose opinion is not reflected in the published scientific literature would expose them to Rule 11 sanctions.
Our holding today should not be interpreted as insulating manufacturers of nutritional supplements from liability for consumer fraud. A manufacturer may not hold out the opinion of a minority of scientists as if it reflected broad scientific consensus. Nevertheless, we need not decide today whether any of the representations made on the Companies' products are misleading, because Plaintiffs chose not to include such allegations in the CAC.
In sum, we hold that in order to state a false advertising claim on a theory that representations have been proven to be false, plaintiffs must allege that all reasonable experts in the field agree that the representations are false. If plaintiffs cannot do so because the scientific evidence is equivocal, they have failed to plead that the representations based on this disputed scientific evidence are false.
The CAC is also defective because it fails to allege that all of the ingredients contained in the products are incapable of providing the represented benefits. This defect presents an alternate ground for affirming the district court.
The CAC alleges that according to most scientists, glucosamine and chondroitin, MSM, and HA do not provide the benefits represented on the products' packaging. However, most of the products cited in the complaint contain additional ingredients. All of the GNC products allegedly purchased by the named plaintiffs contain ingredients not referenced in the CAC, including white willow bark extract, hops cones extract, Chinese skullcap root extract, and fish oil. All of the Rite Aid products allegedly purchased by named plaintiffs except for Rite Aid Natural Glucosamine/Chondroitin also contain additional ingredients. Plaintiffs conceded before the district court that the CAC does not "specifically address" what they refer to as the "minor ingredients" in the products.
Most of the challenged representations-including "supports improved joint health," "protects joints," "joint comfort," and "rebuilds cartilage" — refer to the products as a whole.
We therefore affirm the dismissal of all claims regarding the overall formulation of all products except for Rite Aid Natural Glucosamine/Chondroitin on the alternate ground that the CAC does not allege that the products' ingredients are ineffective as marketed.
The Companies also argue that the studies cited in the CAC are not specific enough to raise any plausible inferences regarding the efficacy of the challenged products. We find this line of reasoning unpersuasive and inconsistent with notice pleading under Twombly and Iqbal.
First, the Companies argue that because the scientific studies cited in the CAC concerned patients with osteoarthritis, their findings are inapplicable to people without arthritis who experience joint pain and stiffness. Plaintiffs respond that we must take as true the CAC's allegation that "experts in the field deem [clinical studies conducted on arthritic patients] to be appropriate proxies for whether the ingredients are effective ... for both arthritic and non-arthritic users." J.A. 23 n. 5. Plaintiffs further note that the symptoms of arthritis assessed in the studies — joint stiffness, pain, and discomfort — are precisely the symptoms that the products purport to remedy. For example, the CAC cites one study that concluded that "glucosamine and chondroitin, alone or in combination, did not reduce joint pain ... compared with a placebo," and another that found that "glucosamine and chondroitin did not rebuild cartilage." J.A. 37-38. It may well be that glucosamine and chondroitin work differently in people with arthritis than in people without arthritis, but such a factual dispute is not susceptible to resolution at the motion-to-dismiss stage.
Second, the Companies argue that the scientific studies cited in the CAC are insufficient evidence of falsity because they did not assess the specific formulations used in the products or the synergistic effects between the products' ingredients. They argue that the studies are inapplicable because they considered different amounts and combinations of glucosamine and chondroitin. Again, however, our inquiry at this stage is limited to the plausibility of the CAC and not the ultimate truth of its allegations: The applicability of a study regarding different dosages of the same ingredients to the products at issue is not susceptible to resolution at the motion-to-dismiss stage. See Quinn v. Walgreen Co., 958 F.Supp.2d 533, 544 (S.D.N.Y.2013); Pearson v. Target Corp., No. 11 CV 7972, 2012 WL 7761986, at *2 (N.D.Ill. Nov. 9, 2012) ("[W]hether or not the proffered studies are applicable to Up & Up Triple Strength is a question of fact that I do not decide at this stage. The fact that these studies looked at products that shared the same active ingredients-Glucosamine, Chondroitin, and MSM-makes Plaintiff's claim facially plausible."); see also Jovel v. i-Health, Inc., No. 12-CV-5614 (JG), 2013 WL 5437065, at *9 (E.D.N.Y. Sept. 27, 2013). We therefore
For the foregoing reasons, we hold that the CAC fails to state a claim upon which relief can be granted. The judgment of the district court is therefore
AFFIRMED.