Advertising and Promotion Alert: "Battle of the Experts" Not Sufficient to Establish Violation of State Consumer Protection Acts

In the increasingly litigious area of food labeling claims, manufacturers received a little help in a recent decision from a federal judge in Maryland.  Reviewing a consumer’s assertion that the claimed benefit for a dietary supplement had insufficient scientific support, the Court ruled that the mere existence of a “battle of the experts” regarding scientific evidence is not sufficient grounds to state a claim for relief, and therefore, the Court dismissed the complaint.  If followed by other judges, this decision effectively raises the bar for the degree of expert consensus required for plaintiffs to successfully file a suit over scientifically-based claims.

Plaintiffs, purchasers of the GNC TriFlex^TM line of products, attacked claims for the products such as “promotes joint mobility and flexibility” and “supports [a] natural anti-inflammatory response” because they contained glucosamine hydrochloride and chondroitin sulfate.  Some of the labels claimed the product was “clinical strength with an impact confirmed by scientific research.”  The complaint identified twelve studies showing that the supplements performed no better than placebo.   Although the studies generally dealt with osteoarthritis, plaintiffs asserted that “experts in the field consider these studies to be an effective proxy for measuring the ability of glucosomine and chondroitin to improve the health and performance of joints in non-arthritic consumers.”  Therefore, according to plaintiffs, “the vast weight of the evidence supports a single conclusion:   glucosamine and chondroitin, ingested orally, does little to improve joint discomfort or to treat the symptoms of deteriorating cartilage.”  Plaintiffs, purchasers of the products, sued under a variety of consumer protection and false advertising laws from various states.

The Court found that the allegations of the complaint failed the plausibility standard for complaints established by the Supreme Court.   According to the court, the complaint “does not allege that "experts in the field" are prepared to testify that, on the basis of the existing scientific evidence, any reasonable expert would conclude from the cited studies that glucosomine and chondroitin are ineffective in nonarthritic consumers.  Likewise, there is no allegation that the clinical trial relied upon by defendants: (1) does not exist at all, (2) exists but does not support any of GNC's representations about TriFlex, or (3) exists and supports the assertions on TriFlex Fast-Acting's bottle, but was not conducted in an appropriately scientific manner.”  Therefore, according to the judge, the complaint merely alleges the  existence of differing opinions among experts in the field – which is not enough to state a violation of state consumer protection statute where the plaintiff must allege, and prove, that the claim is false and misleading.  It is important to note that the advertising claims involved did not assert that the scientific evidence proved the effectiveness of glucosamine and chondroitin.

This is the decision of only a trial court in Maryland, so it is not binding precedent.  However, it can be persuasive to other judges faced with similar claims.  At a minimum, it may deter some plaintiffs’ counsel from filing suit based solely on a review of published studies, rather than upon the opinion of an actual expert that the claim is false.