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Gershman v. Bayer Healthcare LLC

United States District Court, N.D. California

May 8, 2015

LIZA GERSHMAN, et al., Plaintiffs,


HAYWOOD S. GILLIAM, Jr., District Judge.

Defendant Bayer HealthCare LLC moves to dismiss Plaintiff Liza Gershman's First Amended Class Action Complaint ("FAC"). For the reasons articulated below, the motion is DENIED IN PART and GRANTED IN PART.


On December 4, 2014, Plaintiff Gershman filed a class action complaint against Defendant. On January 12, 2015, Plaintiff Gershman and Plaintiff Sean Porter filed the FAC. Plaintiffs allege that Defendant manufactures an Omega-3 DHA dietary supplement called "Flintstones Healthy Brain Support" (the "Product"). FAC ¶ 1. On the Product's packaging, Defendant characterizes the Product as "Healthy Brain Support" and claims that the Product "Supports Healthy Brain Function." Id. ¶ 33. Plaintiffs allege that these claims are "false, misleading, and deceptive." Id. ¶ 22. Plaintiffs further allege that they purchased the Product "in reliance on Bayer's brain function and brain support representations, " and that "[h]ad [they] known the truth about Bayer's misrepresentations, [they] would not have purchased the Product." Id. ¶¶ 27-28.

Plaintiffs allege that Defendant's advertising violates California and Illinois consumer protection laws for three independent reasons:

1. Brain Chemistry Allegations.

First, Plaintiffs allege that "the Product cannot support brain function or brain support because: (1) a trivial and meaningless amount of DHA is provided to the brain by the Product; and (2) American children and adults get sufficient DHA in their daily diet." Id. ¶ 58. As factual support for this allegation, Plaintiffs state that "[t]he brain contains about 5000 mg of DHA, " a daily dose of the Product provides "50mg-100mg of Omega-3 DHA, " and therefore "a daily dose of the Product would only replace about.000005% and.00001% of the brain's DHA content in children 2-3 years of age and adults and children over 4, respectively, on a daily basis." Id. ¶¶ 4, 13, 61. In other words, while Plaintiffs do not dispute that " molecular DHA does play a role in the brain, this does not mean supplemental DHA supports brain function, " because Americans naturally consume adequate DHA and the Product contains such a trivial amount of DHA that "experts deem this amount as incapable of providing any brain function or brain support benefit." Id. ¶¶ 59-61 (emphasis in original). Plaintiffs also support their claim by pointing to determinations by the Institute of Medicine (IOM) and the Food and Drug Administration (FDA) that DHA "is not an essential nutrient." Id. ¶¶ 62-63.

2. RCT Allegations.

Second, Plaintiffs allege that "[e]xperts in the field determine whether a substance provides brain function benefits by performing randomized controlled clinical trials (RCTs') and measuring whether, in comparison to placebo, it provides improved cognitive function." Id. ¶ 3. Plaintiffs then cite to four RCTs that they allege "conclusively show[] that algal Omega-3 DHA supplements, such as the Flintstones Healthy Brain Support supplements sold by Defendant, do not improve cognitive development" and "perform[] no better than placebo with regard to brain function." Id. ¶¶ 4, 8. These studies involved "the same algal Omega-3 DHA" that is contained in the Product and therefore allegedly demonstrate that Defendant's Product claims are false. Id. ¶ 8 (emphasis in original).

3. Lack of Substantiation.

Third, Plaintiffs allege that Defendant's claims in relation to the product are "unlawful" because "there is no competent and reliable evidence that [the Product] provides brain support or brain function benefits" as required by the federal Dietary Supplement Health and Education Act of 1994 ("DSHEA") and the California Sherman Act. Id. ¶ 19. According to the FAC, "[e]xperts in the field... deem the only credible scientific evidence to substantiate human health benefit claims... [to be] evidence from RCTs, " and "[n]o such RCTs exist to substantiate" Defendant's claims. Id. ¶ 18.

Plaintiffs assert four causes of action based on these facts: 1) violation of the "fraudulent" prong of the California Unfair Competition Law ("UCL") on behalf of a putative multi-state class of consumers who "purchased [the Product] in California, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington, " or, in the alternative, a California-only class; 2) violation of the "unlawful" prong of the UCL on behalf of a putative class of California consumers; 3) violation of the California Consumers Legal Remedies Act ("CLRA") on behalf of a putative class of California consumers; and 4) violation of the Illinois Consumer Fraud Act ("ICFA") on behalf of a putative class of Illinois consumers. Plaintiffs seek both monetary damages and injunctive relief.


A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must provide "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. On a motion to dismiss, the court accepts as true a plaintiff's well-pleaded factual allegations and construes all factual inferences in the light most favorable to the plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But the plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. A court "need not accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (holding that courts may consider materials "incorporated by reference in the complaint").

Because Plaintiffs' claims are premised on allegedly fraudulent conduct, Rule 9(b) also applies. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Rule 9(b) requires a plaintiff to "state with particularity the circumstances constituting fraud, " including "the who, what, when, where, and how of the misconduct charged." Id. at 1124. Claims for fraud must be based on facts "specific enough to give defendants notice of the particular misconduct... so that they can defend against the charge." Id. Allegations of fraud must meet both Rule ...

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