Putative class representative Andrea Nathan renewed her efforts to hold Vitamin Shoppe, Inc. liable under California’s Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and breaches of express and implied warranties over Vitamin Shoppe’s “Garcinia Cambogia” dietary supplements after a California district court judge tossed the suit in February of this year. Vitamin Shoppe markets two products that contain the supplement, for “appetite control” and “weight management” respectively. Nathan cited several studies in her first complaint, stating that the products’ only active ingredients (hydroxycitric acid and chromium) “are scientifically proven to be incapable of providing  weight-loss benefits.” The court, however, found such studies to be irrelevant because Vitamin Shoppe’s advertising does not promote weight-loss benefits, as opposed to “appetite control” and “weight management,” and dismissed Nathan’s complaint with leave to amend.
Nathan filed her first amended complaint a week later, which purports to fix the pleading deficiencies noted by the court. However, as Vitamin Shoppe pointed out in its motion to dismiss, it relies on the same studies as the original complaint and still mentions the fatal phrase “weight loss” over thirty times. Vitamin Shoppe’s motion to dismiss remains pending.
Takeaway: In false advertising suits, specific language matters. To survive dismissal, parties should plead only the specific claims made in the allegedly false advertisement.