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Alvarez v. NBTY, Inc.

United States District Court, S.D. California

January 3, 2020

ROSA ALVAREZ, on behalf of herself and all others similarly situated, Plaintiff,
NBTY, INC., et al., Defendants.


          Hon. Cynthia Bashant, United States District Judge

         Plaintiff 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 (“CLRA”).

         Defendants 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).[1]

         The 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.

         I. BACKGROUND

         Defendants 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.)

         In 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.

         Plaintiff 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.)

         Plaintiff's 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.)


         “After 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).

         III. ANALYSIS

         Defendants 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.[2]

         In arguing preemption, Defendants rely heavily on Greenberg v. Target Corp., 402 F.Supp.3d 936 (N.D. Cal. 2019).[3] 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 ...

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