The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [DOC. 6.]
Pending before the Court is Defendant Vital Pharmaceuticals, Inc.'s ("Vital Pharm") motion to dismiss for failure to state a claim upon which relief may be granted. (Doc. No. 6.) Plaintiff Zack Aaronson opposes the motion.
The motion being fully briefed, the Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). As an initial matter, the Court GRANTS Vital Pharm's Request for Judicial Notice (Doc. 6-2). And for the reasons discussed below, the Court will GRANT IN-PART and DENY IN-PART Vital Pham's motion to dismiss (Doc. 6).
Vital Pharm manufactures and sells a variety of energy drinks and related products under the brand name of Redline ®. Redline's active ingredients include beta-alanine, caffeine, vitamin C, N-Acetyl-LTyrosine, potassium citrate, yohimbine HCI, B-Phenylethylamine HCI, N-methyl Tyramine, Evodiamine, Sulbutiamine, 5-HydroxyL-Tryptophan, yerba mate, green tea, vinpocetine, and hypericin. (Req. for Jud. Not., Ex. A.) Aaronson purchased and used Redline several times in 2008. Aaronson claims later to have learned that Redline was not safe.
On June 16, 2009, Aaronson filed the present lawsuit. (Compl. [Doc. 1.] at 1.) The complaint alleges five state-based causes of action.*fn1 First, Aaronson claims that Vital Pharm violated Cal. Bus. & Prof. Code § 17200 by failing to make known the risks inherent in Redline and by deceptively promoting Redline as having approved and unique drug-qualities. (Id. at 13). Second, he alleges that Vital Pharm disseminated deceptive representations that wrongly promote Redline as a safe and healthy supplement in violation of Cal. Bus. & Prof. Code § 17500. (Id. at 15.) Third, Aaronson contends that Vital Pharm fraudulently concealed the dangers and risks associated with using Redline. (Id. at 16.) Fourth, Aaronson alleges that Vital Pharm breached the implied warranty of fitness by representing itself as reputable and its product as safe for enhancing energy and promoting weight loss. (Id. at 17-18.) Fifth, Aaronson alleges that Vital Pharm breached an express warranty by marketing its product as safe when in fact it is not, and failing to warn of the risks associated with its use. (Id. at 19.)
Vital Pharm now seeks to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(6) and 9(b). Additionally, Vital Pharm asserts that Aaronson's first two claims invade the FDA and FTC's primary jurisdiction, and asks the Court to exercise its discretion to dismiss the claims.
A. Dismissal Under the Primary Jurisdiction Doctrine
Vital Pharm argues that the first two causes of action should be dismissed or stayed under the primary jurisdiction doctrine. This doctrine "applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires resolution of issues which, under a regulatory scheme, have been placed within special competence of an administrative body, in which case the judicial process is suspended pending referral of such issues to the administrative body for its views." United States v. Western Pac. R.R. Co., 352 U.S. 59, 64 (1956) (citing General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433 (1940)). The doctrine is applied at the court's discretion, and courts typically look to factors including whether adjudication of the issue requires the administrative body's expertise and whether there is a need for uniformity within the area of regulation. Syntek Semiconductor Co., Ltd. v. Microchip Technology, Inc., 307 F.3d 775, 781 (9th Cir. 2002) (citing United States v. General Dynamics Corp., 828 F.3d 1356, 1362 (9th Cir. 1987)).
Aaronson's first cause of action challenges Vital Pharm's "design, testing, manufacture, assembly, development, marketing, advertising and labeling" of Redline on the bases that the product has a "harmful impact upon members of the general public and the Class who purchased and used the Product for its intended and foreseeable purpose...." (Compl., at 13.) Aaronson's second cause of action alleges that Vital Pharm "disseminated, or caused to be disseminated, deceptive representations that promote the Product as a safe and healthy dietary supplement... but minimize, and fail to adequately warn the public of, the dangers and health risks associated with use of [Redline] or the proper dosage...." (Id. at 15.) As relief for these claims, Aaronson seeks an order enjoining the alleged wrongful practices. (Id. at 23.)
Vital Pharm asserts that the FDA and FTC's special expertise are needed to adjudicate these claims, pointing out that the safety of dietary supplements is not regulated until after they enter the market. (MTD at 5-6.)*fn2 Vital Pharm further argues that the relief sought by Aaronson could lead to inconsistent product regulation, a result that primary jurisdiction seeks to avoid. (Id. at 6-7.) The Court will evaluate these arguments separately.
Cases raising issues of fact that do not fall within the traditional expertise of judges or cases requiring the expertise of administrative authority should be relinquished to the agency established by Congress to regulate the subject matter. Far East Conference v. United States, 342 U.S. 570, 574 (1952). The FDA, more than the average consumer, knows how to weigh conflicting studies and determine the most accurate and up-to-date information regarding product safety. Premo Pharm. Labs, Inc. v. United States, 629 F.2d 795, 803 (2nd Cir. 1980). Although courts can resolve whether a product has been approved as safe, the ...