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Kay Eckler, On Behalf of Herself and All v. Wal-Mart Stores

October 31, 2012

KAY ECKLER, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
WAL-MART STORES, INC., A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: United States District Judge Honorable Larry Alan Burns

MOTION TO DISMISS ORDER ON WAL-MART'S

Kay Eckler bought a dietary supplement from Wal-Mart that, she alleges, didn't deliver the benefits it promised. The supplement is Equate Glucosamine MSM Advanced Triple Strength, which is marketed as good for the health and comfort of joints. Eckler asserts claims for: (1) violations of California's Unfair Competition Law, Cal. Bus. and Prof. Code § 17200, et seq.; (2) violation of the California Consumers Legal Remedies Act, Cal. Civ. Code § 1750; and (3) breach of express warranty.*fn1 Now pending is Wal-Mart's motion to dismiss under Federal Rules of Civil Procedure 8, 9(b), and 12(b)(6).

I. Legal Standard

A 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering such a motion, the Court accepts all allegations of material fact as true and construes them in the light most favorable to Eckler. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). To defeat a 12(b)(6) motion, a complaint's factual allegations needn't be detailed; they must simply be sufficient to "raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, "some threshold of plausibility must be crossed at the outset" before a case can go forward. Id. at 558 (internal quotations omitted). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

While the Court must draw all reasonable inferences in Eckler's favor, it need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotations omitted). In fact, the Court does not need to accept any legal conclusions as true. Iqbal, 129 S.Ct. at 1949. A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotations omitted). Nor does it suffice if it contains a merely formulaic recitation of the elements of a cause of action. Bell Atl. Corp., 550 U.S. at 555.

II. "Lack of Substantiation" Claims

The first question for the Court is whether Eckler's false advertising claims under the Unfair Competition Law and Consumers Legal Remedies Act are really just "lack of substantiation" claims. It's a problem if they are, because private litigants can't bring those claims. See Nat'l Council Against Health Fraud, Inc. v. King Bio Pharm., Inc., 107 Cal.App.4th 1336, 1345 (Cal. Ct. App. 2003); Stanley v. Bayer Healthcare LLC, 2012 WL 1132920 at *3 (S.D. Cal. Apr. 3, 2012).

There's no doubt that Eckler's claims draw heavily on the alleged lack of any scientific evidence that glucosamine is good for the body's joints. In the very opening of her complaint, for example, she states that "Equate does not support joint comfort, renewal and rejuvenation" and then continues, "Clinical cause and effect studies have found no causative link between the primary purported active ingredients in Equate and the prevention of joint degeneration or relief from joint discomfort. And, there are no competent or well-designed clinical studies that support Wal-Mart's joint comfort, renewal and rejuvenation representations." (FAC ¶ 2.) Translation: Equate's claims are unsubstantiated. That allegation seems to takes center stage in Eckler's complaint:

* Wal-Mart represents that the joint comfort, renewal and rejuvenation benefits are achieved from the combination of ingredients in the Product. The primary active ingredient in Equate is glucosamine hyrdrochloride . . . . There is no competent and reliable scientific evidence that taking glucosamine - let alone through oral administration - helps to "rebuild cartilage", "lubricate joints" or "support joint comfort". In fact, clinical cause and effect studies have found no causative link between glucosamine supplementation and joint comfort, renewal or rejuvenation. (FAC ¶ 13.)

* The Equate product also contains a Proprietary Blend consisting of [a list of ingredients] . . . . There is no competent scientific evidence that taking any of these ingredients - let alone through oral administration - has the ability to "rebuild cartilage", "lubricate joints" or improve joint comfort. In fact, clinical cause and effect studies have found no causative link between supplementation with any of the ingredients, alone or in combination, and joint comfort, renewal or rejuvenation. (FAC ¶ 14.)

* There are no competent and reliable scientific studies that support WalMart's joint comfort, renewal and rejuvenation representations. Indeed, clinical cause and effect studies establish that Wal-Mart's joint comfort, renewal and rejuvenation representations are deceptive. For example, the National Institute of Health . . . concluded that "[g]lucosamine and chondroitin sulfate alone or in combination did not reduce pain effectively in the overall group of patients with osteoarthritis of the knee." (FAC ¶ 16.)

* For example, the National Collaborating Centre for Chronic Conditions reported "the evidence to support the efficacy of glucosamine hydrochloride as a symptom modifier is poor" and the "evidence for efficacy of chondroitin was less convincing." Consistent with its lack of efficacy findings, the NCCCC Guideline did not recommend the use of glucosamine or chondroitin for treating osteoarthritis. (FAC ¶ 18.)

* Scientific studies also confirm that the other ingredients in Equate are inefficacious. (FAC ¶ 19.)

* Despite the scientific evidence that the ingredients in Equate do not renew or rejuvenate joints or improve joint comfort and without possessing any competent and reliable scientific evidence that the Product works as advertised, Wal-Mart continues to convey through its advertising and labeling one uniform message: Equate helps to "rebuild cartilage", "lubricate joints" and "support joint comfort" in all ...


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