The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE MAYNOR GALVEZ
Deputy Clerk Not Reported
Court Reporter Attorney(s) Present for Plaintiff(s): Not Present Attorney(s) Present for Defendant(s): Not Present

Proceedings: Order (1) GRANTING IN PART and DENYING IN PART Defendant's Motion to Dismiss (Doc. No. 14) and (2) VACATING the April 29, 2013 Hearing (IN CHAMBERS)

Before the Court is Defendant's Motion to Dismiss the First Amended Complaint. ("Motion," Doc. No. 14.) The Court finds this matter appropriate for resolution without a hearing pursuant to Local Rule 7-15 and VACATES the April 29, 2013 hearing. After reviewing all papers filed in support of and in opposition to the Motion, the Court GRANTS IN PART and DENIES IN PART the Motion to Dismiss.

I. INTRODUCTION

On February 27, 2013, Plaintiff Robert McCrary ("Plaintiff") filed the operative First Amended Class Action Complaint against Defendant The Elations Company, LLC ("Defendant"). (FAC, Doc. No. 10.) According to the FAC, Defendant markets, distributes, and sells the Elations dietary supplement beverage. (FAC ¶ 1.) Plaintiff was diagnosed with osteoarthritis which causes him pain and immobility in his joints. (FAC ¶ 80.) While shopping at CVS in August 2011, Plaintiff alleges he reviewed the packaging of Elations and in reliance on the claims made therein he purchased Defendant's product. (FAC ¶¶ 81-82.) Plaintiff claims that he did not receive any of the promised benefits and would never have purchased the product had he known of its ineffectiveness. (FAC ¶¶ 83-84.) Plaintiff brings the action on behalf of all other persons "residing in the State of California who purchased Elations for personal use and not for resale since December 28, 2008." (FAC ¶ 19.)

Plaintiff contends that Elations has four ingredients: glucosamine hydrochloride, chrondroitin sulfate, calcium, and boron. (FAC ¶¶ 62, 71.) Plaintiff argues that these four ingredients do not provide the effects promised by Defendant's marketing. (FAC ¶ 38.) Plaintiff alleges that several of Defendant's marketing, advertising and labeling claims for Elations are false and misleading, including:

1. "Healthier Joints"
2. "Improves Joint Comfort"
3. "Improves Joint Flexibility"
4. "Elations Clinically Proven Combination"
5. "Proven Level of Glucosamine and Chondroitin"
6. "Improves Joint Comfort in 6 Days!"
7. "Research indicates that taking 1,500 mg of glucosamine and 1,200 mg of chondroitin daily can help improve joint function and give joints what they need to stay healthy."
8. "Glucosamine thickens the snovial fluid in your joints so that it can absorb more friction and cushion the joints, meaning more lubrication and less discomfort."
9. "While Glucosamine acts to thicken synovial fluid and cushion joints, Chondroitin is a major component of cartilage and helps maintain its structural integrity."

To demonstrate the falsity of Defendant's claims, Plaintiff points to numerous scientific studies which can be grouped into four categories. First, Plaintiff argues that Defendant relies on studies of crystalline glucosamine sulfate ("CGS") to support Elations' health claims, although Elations' actual ingredient is glucosamine hydrocloride ("GH"). (FAC ¶¶ 52-53.) Plaintiff cites several studies which purport to show that the benefits of CGS cannot be extrapolated to GH. (FAC ¶ 56.) Second, Plaintiff identifies studies which he claims show that GH is no more effective than a placebo for the treatment of osteoarthritis. (FAC ¶ 59.) Similar studies show that GH in combination with chrondroitin sulfate ("CS"), one of the other ingredients in Elations, "provide no clinical benefit in patients with primary osteoarthritis . . . ." (FAC ¶ 60.) Third, Plaintiff cites studies that allegedly demonstrate that CS alone has "little to no effect [in] treatment on the symptoms of [osteoarthritis]." (FAC ¶ 69.) Finally, Plaintiff contends that the other two ingredients in Elations, boron and calcium, do not support its use as a remedy for joint pain, swelling, and inflammation. (FAC ¶¶ 72-73.) Plaintiff refutes one study which he claims is not clinically significant evidence of boron's effectiveness in reducing the causes and symptoms of osteoarthritis. (FAC ¶ 76.)

Based on these allegations, Plaintiff asserts four causes of action for (1) violation of the unfair and fraudulent prongs of the Unfair Competition Law ("UCL") under Cal. Bus. Prof. Code §§17200 et seq.; (2) violation of the unlawful conduct prong of the UCL; (3) violation of the False Advertising Law ("FAL") under Cal. Bus. Prof. Code §§ 17500 et seq.; and (4) violation of the Consumer Legal Remedies Act ("CLRA") under Cal. Civ. Code § 1750 et seq.

Defendant filed a Motion to Dismiss the First Amended Complaint on March 27, 2013. ("Motion," Doc. No. 14.) Plaintiff opposed on April 8, 2013. ("Opp'n," Doc. No. 16.) Defendant replied on April 15, 2013. ("Reply," Doc. No. 18.)

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), a party may bring a motion to dismiss for failure to state a claim upon which relief can be granted. As a general matter, the Federal Rules require only that a plaintiff provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In addition, the Court must accept all material allegations in the complaint - as well as any reasonable inferences to be drawn from them - as true. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005); Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted). Rather, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 545. "[T]he pleading standard Rule 8 announces . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

III. DISCUSSION

A. Judicial Notice

The Court will consider Exhibits A through D submitted in support of the Motion. (Declaration of Ed Klene, Doc. No. 14-2, Exhs. A-D.) These exhibits depict Elations' packaging during the class period from December 28, 2008 to today. (Klene Decl., ¶¶ 2-6.) In the FAC, Plaintiff alleges that he reviewed and relied on Elations' packaging before purchasing the product and that the class members saw and relied on the packaging as well. (FAC ¶¶ 81, 23.) The Court can consider the labels under the incorporation by reference doctrine because Plaintiff relied on the labels in the FAC and does not challenge their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) ("[U]nder the incorporation by reference doctrine, which permits us to take into account documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading.") (internal quotation omitted); see, e.g., Ivie v. Kraft Foods Global, Inc., C-12-02554-RMW, 2013 WL 685372, at *4 (N.D. Cal. Feb. 25, 2013) (relying on the "packaging of the products plaintiff challenged in the [Amended Complaint]" on a motion to dismiss because the exhibits "portray unchallenged product packaging").

The Court will also take judicial notice of the judicial opinions in Cabral v. Supple, LLC, No. 5:12-cv-0085 MWF (OPx) (C.D. Cal. July 3, 2012), Cabral v. Supple, LLC, No. 5:12-cv-0085 MWF (OPx) (C.D. Cal. Sept. 19, 2012), and Otto v. Abbott Labrotories, Inc., No. 12-14110 SVW (DTBx) (C.D. Cal. Mar. 15, 2013). (Plaintiff's Request for Judicial Notice, Doc. No. 17, Exhs. 1-2; Defendant's Request for Judicial Notice, Doc. No. 14-3, Exh. 1.) The Court may take judicial notice of court filings and other matters of public record. Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); see Wendt v. Smith, 273 F. Supp. 2d 1078, 1082 (C.D. Cal. 2003) (taking "judicial notice of the various opinions of the U.S. District Court and unpublished opinions of the Ninth Circuit").

B. Plausible Falsity of Elations' Advertising Claims

Under all four causes of action, the FAC challenges the statements made on the packaging of the Elations supplement on the grounds that they are "false and misleading." (FAC ¶¶ 88, 104, 113, 125.) In order to sufficiently plead a claim for false and misleading advertising under the CLRA, FAL, and UCL, Plaintiff must plausibly allege that the claims in Defendant's marketing or advertising are false. National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., 107 Cal. App. 4th 1336, 1342 (2003).

1. Claims Regarding Joint Flexibility, Comfort, and Health

The FAC fails to establish a plausible basis for the false or misleading nature of the advertising claims regarding joint comfort, flexibility and health. Plaintiff claims that Defendant's representations that Elations improves "joint comfort" and "joint flexibility" within 6 days are false because the ingredients in Elations are not effective in the treatment of osteoarthritis. All of the studies Plaintiff cites examine whether GH and/or CS are effective in treating osteoarthritis. (See, e.g., FAC ¶¶ 56, 59, 60.) However, none of the marketing or advertising claims challenged by Plaintiff concern osteoarthritis. Elations' packaging explicitly states that the product is "not intended to diagnose, treat, cure, or prevent any disease." (Klene Decl., Exhs. A-D.) Therefore, the studies pertaining to the ineffectiveness of Elations' ingredients in the treatment of osteoarthritis are inapposite. These studies do not plausibly demonstrate that Elations does not improve joint comfort, flexibility, or health. The court in Eckler v. Wal-Mart Stores, Inc., 12-CV-727-LAB-MDD, 2012 WL 5382218 (S.D. Cal. Nov. 1, 2012), discussed this very issue and noted:

"[T]he studies Eckler cites are all osteoarthritis studies. Specifically, they looked at the impact of glucosamine [or] chondroitin . . . on the pain and loss of cartilage associated with osteoarthritis of the hip and knee. But [Defendant's product] doesn't represent that it will reduce the pain and cartilage loss associated with

osteoarthritis. In fact, in two places the packaging states that the product 'is not intended to diagnose, treat, cure, or prevent any disease.' . . . The studies allegedly show that glucosamine doesn't alleviate the symptoms of osteoarthritis in the hip and knee. That is a very particular showing with respect to a degenerative joint disease, and in the Court's judgment it doesn't address the far more general claim—which is made by the [product's] representation . . . ."

Plaintiff argues that the claims on Elations' packaging can be extrapolated to reference osteoarthritis. In particular, the FAC argues that Defendant makes "health claims" regarding Elations' effectiveness in treating osteoarthritis because the packaging "refers to the primary symptoms of [osteoarthritis] and creates the inference that daily use of Elations can effectively treat" osteoarthritis. (FAC ¶ 50.) While the Court must accept the factual allegations in the FAC as true, the Court need not accept as true Plaintiff's legal conclusions or allegations that contradict matters subject to judicial notice. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) ("The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.") (internal citation omitted). Whether the statements on Elations' packaging are "health claims" regarding a disease is a matter of law that must be decided by the Court, and Plaintiff therefore cannot rely on this argument to support its claim that Elations' advertising impliedly references osteoarthritis. See Yumul v. Smart Balance, Inc., CV 10-00927 MMM, 2011 WL 1045555 (C.D. Cal. Mar. 14, 2011) (discussing the law defining a "health claim"). Moreover, as discussed above, Elations' packaging directly contradicts any supposed reference or inference to osteoarthritis by disclaiming that it treats any disease. The Court finds that neither the marketing claims challenged by Plaintiff nor Elations' packaging make any reference to osteoarthritis. Therefore, the osteoarthritis studies Plaintiff cites do not plausibly support a claim that Defendant's claims regarding "healthier joints," "joint comfort," or "joint flexibility" are false.

For the reasons discussed above, the Court DISMISSES Plaintiff's claims regarding "healthier joints," "joint comfort," or "joint flexibility" WITH LEAVE TO AMEND.

2. Claims Regarding Clinical Effectiveness of Glucosamine and Chondroitin

Most of the remaining advertising claims challenged by the FAC relate to whether Elations is a "clinically proven combination" of glucosamine and chondroitin. Plaintiff alleges that there is no clinical proof to substantiate Defendant's claim that GH and/or CS are effective in treating joint issues. (FAC ¶ 68.) Plaintiff also claims that Defendant relies on studies of CGS as the "clinical proof" that Elations, which includes only GH, effectively improves the flexibility, health or comfort of joints. (FAC ¶ 57.)

As to claims regarding the clinical effectiveness of GH and CS, the Court finds the reasoning of Cabral v. Supple, LLC, No. 5:12-cv-0085 MWF (OPx) (C.D. Cal. July 3, 2012) persuasive. In Cabral, the court examined similar allegations regarding the "clinically proven effective[ness]" of a dietary supplement containing GH and CS. Id. at 1. The court denied the motion to dismiss where the complaint alleged that defendant "allegedly relied on [CGS] trials in making false claims as to the [product's] effectiveness and consequently misled consumers such as [plaintiff]." Id. at 4. The Court finds this reasoning particularly persuasive here where Plaintiff challenges Defendant's claim that Elations contains "proven level[s] of glucosamine and chondroitin." If, as Plaintiff contends, Defendant relies on clinical studies pertaining to CGS to support this claim, Plaintiff has made a plausible showing of falsity because Elations does not contain CGS and Plaintiff has plausibly alleged that the benefits of CGS cannot be extrapolated to Elations' actual ingredient GH.

Defendant argues Plaintiff has not demonstrated falsity regarding the clinical proof claims because Plaintiff's studies examine only the effectiveness of GH, CS, or the combination of the two, and Plaintiff provides no studies examining the combination of all four active ingredients in Elations. See Eckler, 2012 WL 5382218, at *6 ("[N]one of these studies actually involved Equate. As its packaging makes clear, Equate contains a number of ingredients . . . . [a]nd it is that overall formulation that's behind the representations at issue."). While this argument is relevant to advertising claims regarding Elations as a whole, it does not pertain to Defendant's statements which specify the effectiveness of glucosamine and chondroitin. (See, e.g., FAC ¶ 5 ("Research indicates that taking 1,500 mg of glucosamine and 1,200 mg of chondroitin daily can help improve joint function and give joints what they need to stay healthy.").) Several claims in Elations' advertisements single out the effectiveness glucosamine and chondroitin, therefore Plaintiff can plausibly refute these claims with studies examining these ingredients.

Plaintiff has plausibly alleged that Defendant's claims regarding the clinical effectiveness of glucosamine and chondroitin in its Elations supplement are false and misleading. See Johns v. Bayer Corp., 09CV1935 DMS (JMA), 2010 WL 2573493, at * 5 (S.D. Cal. June 24, 2010) (finding that plaintiffs who relied on scientific studies of selenium sufficiently alleged that defendant's claims regarding selenium as an ingredient in a vitamin product were false). The Court therefore DENIES Defendant's Motion as to Plaintiff's claims regarding the effectiveness of glucosamine and chondroitin.

However, the Court GRANTS the Motion as to the final advertising claim, "Elations Clinically Proven Combination," WITH LEAVE TO AMEND. This claim does not single out either GH or CS, and Plaintiff provides no scientific studies regarding boron or caluim, either alone or in combination with Elation's other ingredients. For this claim, "it is th[e] overall formulation [of Elations] that's behind the representations at issue," and Plaintiff has not plausibly refuted the clinical effectiveness of Elations as a whole. Eckler, 2012 WL 5382218, at *6. Thus, Plaintiff has not provided any plausible basis to infer that Defendant has no clinical support for its claim that the four ingredients in Elations, in combination, clinically improve joint comfort or flexibility.

B. Reasonable Consumer Standard

Defendant also challenges Plaintiff's claims on the grounds that Plaintiff has failed to plead facts sufficient to show that a reasonable consumer is likely to be misled by the advertising. (Motion at 18.) Claims under CLRA, FAL and UCL are governed by the "reasonable consumer" test, under which a plaintiff must show that "members of the public are likely to be deceived." Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008) (internal quotation omitted). Although reasonableness can, in appropriate circumstances, be decided as a question of law, "California courts . . . have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision on [a motion to dismiss]." Williams, 552 F.3d at 938 (internal citation omitted). Here, Elations' advertising claims do not make it "impossible for the plaintiff to prove that a reasonable consumer was likely to be deceived" by Elations' claims concerning glucosamine and chondroitin. Id. at 939. Thus, the Court concludes that the parties should be able to submit evidence to demonstrate whether a reasonable consumer would find Defendant's advertising to be deceptive or misleading. See Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117, 1129 (C.D. Cal. 2010).

C. Primary Jurisdiction Doctrine

Based on the foregoing discussion and the Court's dismissal of Plaintiff's osteoarthritis claims, the Court declines to address Defendant's arguments regarding the primary jurisdiction doctrine. /// /// /// ///

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss. Plaintiff's claims based on Elations' advertising claims of "healthier joints," "joint comfort," "joint flexibility," "joint comfort in 6 days," and "Elations Clinically Proven Combination" are DISMISSED WITH LEAVE TO AMEND. Plaintiff's remaining claims regarding the clinical effectiveness of glucosamine and chondroitin are sufficiently pled.

IT IS SO ORDERED.