When Robert Toback filed a class action against nutrition store, GNC, alleging that the company’s Vitapak supplement did not perform as advertised, he focused his allegations on only glucosamine and chondroitin – two of the many ingredients of the product.  Toback v. GNC Holdings, Inc., 2013 WL 5206103 (S.D. Fla. Sept. 2013) (Toback v. GNC).  In his claim under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Mr. Toback alleged that those specific ingredients were ineffective in promoting joint health and function as the company advertised.  In support of his complaint, he cited numerous studies which concluded that glucosamine and chomdroitendid not promote joint health.  The defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) due to the “disconnect between the substances Plaintiff claims are ineffective and the substances [actually] contained within the [product].”  Id. at *5.   The defendants argued, therefore, that the facts as pleaded failed to raise an inference that the product was ineffective for its advertised purpose.  In short, the complaint failed to comply with the minimum federal pleading standard as interpreted by the Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Whether the studies cited by the plaintiff were accurate or not, the Court noted that Mr. Toback’s complaint failed to address the efficacy (or non-efficacy) of the product as a whole or the many other ingredients contained in the product.    Id. at *5-6.  In an attempt to cure the pleading defect, Mr. Toback argued, without any factual or scientific support, that the “alchemy” of adding other ingredients to the supplement would not “miraculously” render the product effective.  The Southern District was not persuaded.   Defendants marketed the product “not merely as a glucomin and choldroitin supplement, but as a comprehensive Vitapak program that supports improved joint health.”  Id. at *5.      Because the Plaintiff failed to raise his allegations that the Vitapak product was ineffective for its advertised purpose above the speculative level, the Court dismissed the complaint for failure to satisfy the federal pleading standards.

Guest ContributorAdriana Paris

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