United States District Court, S.D. California
ROSA ALVAREZ, on behalf of herself and all others similarly situated, Plaintiff,
NBTY, INC., et al., Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON
THE PLEADINGS [ECF, 116]
Cynthia Bashant, United States District Judge
Rosa Alvarez brings a complaint against Defendants NBTY, Inc.
and Nature's Bounty, Inc. Plaintiff alleges Defendants
have violated California's unfair competition law
(“UCL”); and Consumers Legal Remedies Act
previously moved for summary judgment, and Plaintiff moved
for class certification-the Court denied both motions. (ECF
Nos. 96, 97.) Defendants now move for judgment on the
pleadings. (“Mot., ” ECF No. 116.) Plaintiff
filed an opposition to the motion, (“Opp'n, ”
ECF No. 119), and Defendants filed a reply, (“Reply,
” ECF No. 121).
Court finds this motion suitable for determination on the
papers submitted and without oral argument. See Civ.
L.R. 7.1(d)(1). For the reasons stated below, this Court
DENIES Defendants' Motion.
manufacture, market, sell, and distribute biotin supplements
under the Nature's Bounty brand. (Second Amended
Complaint, “SAC, ” ECF No. 38, ¶ 1.) The
products at issue here are: Biotin 5000 mcg, SUPER POTENCY
Biotin 5000 mcg, QUICK DISSOLVE Biotin 5000 mcg, Biotin 10,
000 mcg rapid release softgels, and Biotin 10, 000 mcg HEALTH
& BEAUTY rapid release liquid softgels (hereinafter,
“the Products”). (Id.) The Products'
labels state the Products “Support Healthy Hair,
Skin, and Nails” and provide “Energy
Support.” (Id. ¶ 20.)
approximately 2014, Plaintiff Rosa Alvarez's hair began
falling out. (“Alvarez Depo., ” Exhibit B of ECF
No. 51-2, at 54:5-12.) Around this time, Plaintiff went to
her regular nail salon for a manicure. The nail technician
told her there was a supplement on the market that helps with
hair and nails. (Id. at 66:3-15.) The nail
technician took out his bottle of biotin, showed it to
Plaintiff and others, and recommended taking the supplement
in softgel form. (Id. at 68:4-15.) Plaintiff
subsequently went to the store and purchased Defendants'
10, 000 mcg HEALTH & BEAUTY rapid release liquid softgels
biotin product. (Id.; SAC ¶ 15). She took
biotin for a few years.
states she purchased the product “in reliance on
Defendants' health benefit representations.” (SAC
¶ 15.) She claims these representations are false,
misleading, and reasonably likely to deceive the public. In
sum, Plaintiff claims Defendants' representations are
false because the supplements do not support healthy hair,
skin, and nails. (Id. ¶ 9.) “The human
body only requires a finite amount of biotin on a daily basis
for it to perform its enzymatic functions as there are a
finite number of enzymes that use biotin. Once there is
sufficient biotin in the body, saturation occurs and the body
just does not use this surplus biotin.” (Id.
¶ 3.) The average person ingests more than enough biotin
from his or her normal daily diet. (Id.)
“Thus, biotin is not a ‘more is better'
substance, nor is more biotin needed from supplementation to
complete these daily enzymatic functions.”
(Id. ¶ 5.) “[O]nce one consumes a
sufficient amount of biotin, which is easily met by the
general population in their everyday diets, the remainder
becomes functionally superfluous and does not convey any
additional health benefits.” (Id.)
expert Dr. Wolf agrees that “the nutrient biotin plays
a cellular and biochemical role in the support of healthy
hair, skin, nails and energy.” (Wolf Depo, ECF No.
69-2, at 53:9-17.) But Dr. Wolf opines that Defendants'
Products (i.e. “mega-doses” of biotin) “do
not provide any benefits to the general population and, thus,
they do not help support healthy hair, skin and nails, or
energy or energy production” and are “superfluous
and unnecessary.” (“Wolf Report, ” Exhibit
D of ECF No. 51-2, at ¶ 11.) Due to “the metabolic
characteristics of biotin, its availability from most food
sources, and the finite needs of the human body for biotin,
” one has no need for any biotin supplements, and
Defendants' Products are “worthless.”
(Id. ¶ 12.)
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). A court ruling on Rule 12(c) motion for
judgment on the pleadings applies the same standard used in a
Rule 12(b)(6) motion to dismiss for failure to state a claim.
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.
1996). The court must accept all factual allegations in the
complaint as true and construe them in the light most
favorable to the non-moving party. Id.
“Judgment on the pleadings is proper when the moving
party clearly establishes on the face of the pleadings that
no material issue of fact remains to be resolved and that it
is entitled to judgment as a matter of law.” Hal
Roach Studios, Inc. v. Feiner & Co., Inc., 896 F.2d
1542, 1550 (9th Cir. 1989). It is the moving party's
burden to demonstrate that both of these requirements are
met. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d
1480, 1482 (9th Cir. 1984).
argue that Plaintiff's claim that biotin supplements are
unnecessary is preempted. The Food, Drug and Cosmetic Act
(“FDCA”) expressly preempts any state law that
imposes “any requirement respecting any claim of the
type described in section 343(r)(1) of this title made in the
label or labeling of food that is not identical to the
requirement of section 343(r) of this title.” 21 U.S.C.
§ 343-1(a)(5); Dachauer v. NBTY Inc., 913 F.3d
844, 847 (9th Cir. 2019). For dietary supplements, the FDCA
distinguishes between “disease claims” and
“structure/function claims” that manufacturers
make about their products. A structure/function claim
“‘describes the role of a nutrient or dietary
ingredient intended to affect the structure or function in
humans' or ‘characterizes the documented mechanism
by which a nutrient or dietary ingredient acts to maintain
such structure or function.'” Dachauer,
913 F.3d at 846 (quoting 21 U.S.C. § 343(r)(6)).
Structure/function claims must meet three requirements:
“(1) the manufacturer has substantiation that the
statement is truthful and not misleading; (2) the statement
contains a prominent disclaimer that the Food and Drug
Administration (“FDA”) has not evaluated the
statement and that the product ‘is not intended to
diagnose, treat, cure, or prevent any disease'; and (3)
the statement itself does not ‘claim to diagnose,
mitigate, treat, cure, or prevent' disease.”
Id. at 847.
arguing preemption, Defendants rely heavily on Greenberg
v. Target Corp., 402 F.Supp.3d 936 (N.D. Cal.
2019). The plaintiffs in Greenberg
brought claims against Target regarding its biotin
supplements. The label on Target's supplements states:
“Helps support healthy hair and skin” with
asterisks at the end directing readers to a disclaimer:
“This statement has not been evaluated by the Food and
Drug Administration. This product is not intended to
diagnose, treat, cure, or prevent any disease.” 402
F.Supp.3d at 837. Plaintiff Greenberg alleged that the
“structure/function claims regarding the Biotin
Supplements are false and misleading based on evidence that
any form of supplemental biotin is superfluous for the
general public, i.e., has no effect on human structure or
function.” Id. at 840. The court noted that it
was undisputed that the nutrient Biotin “does indeed
affect human structure or function” but the
plaintiff's argument was that although the nutrient
affects structure/function, “the supplement at issue
will impact the health of only a small proportion of the
population.” Id. at 840-41. The court
concluded, “Greenberg identifies no ...