United States District Court, N.D. California
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS CLASS ACTION COMPLAINT Re: Dkt. No. 27
HAYWOOD S. GILLIAM, Jr., District Judge.
Defendant Quincy Bioscience, LLC moves to dismiss Plaintiff Phillip Racies's class action complaint. For the reasons articulated below, the motion is DENIED IN PART and GRANTED IN PART.
On January 21, 2015, Plaintiff filed a class action complaint on behalf of a putative multi-state class, or, in the alternative, a California-only class. Dkt. 1 ("Complt."). The complaint alleges violations of California's Unfair Competition Law ("UCL") and Consumers Legal Remedies Act ("CLRA") based on Defendant's representations regarding its Prevagen product ("Product"), "a purported brain health supplement made with the protein apoaequorin." Complt. ¶ 1.
On the front of the Product label, Defendant represents that the Product is "Clinically Tested, " or at least contains a "Clinically Tested Ingredient, " and that the Product "[i]mproves [m]emory" and "[s]upports" "Healthy Brain Function, " "Sharper Mind, " and "Clearer Thinking." Id. ¶ 23. On the back of the Product label, Defendant further represents that clinical studies have shown that the Product "help[s] with mild memory problems associated with aging" and "improve[s] memory within 90 days." Id. ¶ 26.
Plaintiff alleges that Defendant's advertising violates California consumer protection laws for three independent reasons:
1. Body Chemistry Allegations. First, Plaintiff alleges that Defendant's representations that its Product improves memory and supports brain function are "false, misleading, and reasonably likely to deceive the public" because
one of the world's foremost experts in brain chemistry... has concluded that: (1) [the Product] cannot work as represented because apoaequorin, the only purported active ingredient in [the Product], is completely destroyed by the digestive system and transformed into common amino acids no different than those derived from other common food products...; (2) the average daily diet contains about 75 grams of protein, contains all the required amino acids, and has about 7, 500 times more amino acids than [the Product] (10 mg or 0.01 grams) and, as a result, any amino acids derived from the digestion of [the Product] would be massively diluted and could have no measurable effect on the brain; (3) ingestion of [the Product] cannot and does not have any effect on brain function or memory.
Id. ¶¶ 1-3. Plaintiff further alleges that because the Product cannot provide the promised benefits as a matter of body chemistry, "there can never be any competent and reliable scientific evidence supporting Defendant's brain function and memory representations" and therefore the Defendant's representations that the Product is "clinically tested" are also false and misleading under the UCL. Id. ¶ 5. These allegations are collectively referred to herein as the "body chemistry allegations."
2. Lack of Substantiation-Falsity. As a second and independent basis for Plaintiff's allegation that Defendant's representations that the Product is "clinically tested" are false, Plaintiff alleges that "there is absolutely no evidence in the public record" that any clinical studies were ever performed on the Product and "no RCT involving apoaequorin and brain function or memory" has ever been "registered to be considered for publication in a peer reviewed journal." Id. ¶¶ 5-6. Plaintiff further alleges that "the two abstracts/summaries of purported studies purportedly conducted by Defendant summarized on Defendant's website are not competent and reliable scientific studies.'" Id. ¶ 7.
3. Lack of Substantiation-Unlawful. Finally, Plaintiff alleges that Defendant's Product representations are unlawful under the UCL because "there is no competent and reliable evidence that [the Product] provides brain function and memory benefits, " and therefore "Defendant is selling a dietary supplement in violation of federal law, [the Dietary Supplement Health and Education Act of 1994 ("DSHEA")], and California's Sherman Act. Id. ¶ 12.
Plaintiff asserts three causes of action based on these facts: 1) violation of the "unlawful" prong of the UCL on behalf of a class of California consumers; 2) violation of the "fraudulent" prong of the UCL on behalf of a multi-state class of consumers, or, in the alternative, a California-only class; and 3) violation of the California Consumers Legal Remedies Act ("CLRA") on behalf of a class of California consumers. Plaintiff seeks monetary and injunctive relief.
A. Legal ...