Metropolitan News-Enterprise


Friday, May 18, 2018


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Ninth Circuit:

Action May Proceed Based on Alleged Falsity Of Claim That Vitamin E Aids the Heart

Opinion Reverses Dismissal on Ground That State-Law Causes of Action Are Preempted


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reinstated an action against Pharmavite LLC based on the alleged falsity of its claim on labels of its Nature Made Vitamin E bottles that the product “Helps Maintain a Healthy Heart.”

The memorandum opinion reverses the decision by District Judge George H. King of the Central District of California to dismiss a would-be class action brought by Noah Bradach on behalf of himself and other purchasers of the product, saying that the state-law claims are preempted by federal law.

The complaint alleges violations of California’s Unfair Competition Law and the Consumer Legal Remedies Act. It sets forth that controlled clinical trials “have demonstrated that Vitamin E supplements, like Pharmavite’s Products, do not provide any cardiovascular or heart health benefits.”

The pleading asserts that the defendant’s “health representation is false, misleading, and reasonably likely to deceive the public.”

Warnings Against Supplements

It cites American Heart Association advisories against taking Vitamin E supplements and a Mayo Clinic study saying:

“The bottom line is that even though initial laboratory studies, animal studies and population research into the health benefits of vitamin E looked promising, the clinical trial findings—which provide the best form of evidence—didn’t bear that out. Instead, they uncovered health risks that make it unwise to take separate vitamin E supplements.”

Bradach testified at his deposition that he bought Nature Made Vitamin E because he thought it “was going to help maintain my healthy heart at the time” which he said meant “preventing heart disease.”

District Court Decision

King declared:

“…Pharmavite is correct that Bradach’s claims are preempted. Bradach’s deposition statements reveal that his alleged injury—his purchase of Pharmavite’s vitamin E supplements in reliance on ‘Helps Maintain a Healthy Heart’—is based on his interpretation of ‘Helps Maintain a Healthy Heart’ as meaning ‘prevents heart disease.’…In other words, Bradach is asserting a false disease claim, and…the Nutrition Labeling and Education Act expressly preempts claims based on a false disease claim characterization of ‘Helps Maintain a Healthy Heart’….Thus. Bradach’s claims are preempted as a matter of law.”

A three-judge panel yesterday said it agrees that state-law causes of action based on representations that a product can prevent or cure a specific disease are preempted. However, the opinion points out, such claims may be pursued based on representations as to benefits of a dietary supplement to the “structure/function” of a part of the body.

Reversal Explained

The opinion declares:

“The record does not support the proposition that Bradach’s individual claims are solely premised on preempted disease claims. Bradach’s testimony reflects that he had a mixed understanding of what Pharmavite’s Vitamin E supplement would do. Bradach understood the Vitamin E product to both maintain his heart health and prevent heart disease. Courts have recognized that a plaintiff may have claims based on mixed motives and have allowed claims arising in part from non-preempted motives to move forward….Accordingly, Bradach’s claims were not preempted.”

In denying class certification, King said:

“[T]o maintain non-preempted claims, the proposed class must proceed on a theory that ‘Helps Maintain a Healthy Heart’ is false for structure/function reasons—i.e., that the statement is false because the supplements do not help the structure or function of the heart. As explained, Bradach does not assert a structure/function claim. Thus, Bradach is not and cannot be a member of the proposed class.”

Yesterday’s opinion responds:

“[T]he district court erred when it determined that Bradach’s claims were preempted, so this holding was erroneous.”

King also said:

“The individual questions of consumers’ interpretation of ‘’Helps Maintain a Healthy Heart’ would predominate in the litigation, as the Parties would need to examine every consumer individually to ultimately determine how each consumer interpreted the statement.”

The three-judge panel disagreed, saying: “This determination was based on an error of law and was a per se abuse of discretion.”

The opinion says that under both the Unfair Competition Law and the Consumer Legal Remedies Act, class members “are not required to prove then individual reliance on the allegedly misleading statements”; rather, under the 2002 California Supreme Court decision in Kasky v. Nike, the inquiry is whether “members of the public are likely to be deceived.”

King awarded Pharmavite $84,862, the cost of conducting a consumer survey which it used in a report. He had no power to make that award, yesterday’s opinion says, because it went beyond what is authorized by statute.

The case is Bradach v. Pharmavite, LLC, 16-56598.


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