Durnford v. MusclePharm Corp., No. 16-15374 (9th Cir. 2018)
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The Ninth Circuit reversed the dismissal of an action alleging California consumer claims against MusclePharm Corporation, a manufacturer of nutritional supplements. The complaint alleged that MusclePharm made false or misleading statements about the protein in one of its products.
The Ninth Circuit held that the Food, Drug, and Cosmetic Act (FDCA) and its implementing regulations concerned only the calculation and disclosure of protein amount; the FDCA preempted a state-law misbranding theory premised on the supplement's use of nitrogen-spiking agents to inflate the measurement of protein for the nutrition panel; but the FDCA did not preempt a state-law misbranding theory premised on the label's allegedly false or misleading implication that the supplement's protein came entirely from two specifically named, genuine protein sources. In this case, plaintiff's claims were not preempted to the extent they arose under this theory.
Court Description: Preemption / Food, Drug, and Cosmetic Act The panel reversed the district court’s dismissal of an action alleging California consumer claims against MusclePharm Corporation, a manufacturer of nutritional supplements, for making false or misleading statements about the protein in one of its products; and remanded for further proceedings. The district court dismissed the action as preempted by the Food, Drug, and Cosmetic Act (“FDCA”), reasoning that any declarations of protein content anywhere on a product label could not be false or misleading if the listed amount of protein reflected measurements made in accordance with federal regulations concerning the federally mandated nutrition panel. The panel held that, as relevant here, the FDCA and its implementing regulations concerned only the calculation and disclosure of protein amounts. Specifically, the panel held that the FDCA preempted a state-law misbranding theory premised on the supplement’s use of nitrogen-spiking agents to inflate the measurement of protein for the nutrition panel. The panel further held that the FDCA did not, however, preempt a state-law misbranding theory premised on the label’s allegedly false or misleading implication that the supplement’s protein came entirely from two specifically named, genuine protein sources. The panel concluded that
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