U.S. Court of Appeals for the 9th Circuit has reversed a district court’s dismissal of an action alleging consumer claims against MusclePharm Corp., a manufacturer of nutritional supplements, for making false or misleading statements about the protein in one of its products. The case was sent back to the trial court for further proceedings.
The district court dismissed the action as preempted by the Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. ¶¶ 301-399(i), 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 court of appeals held that, as relevant here, the FDCA and its implementing regulations concerned only the calculation and the disclosure of protein amounts. Specifically, the panel held that the FDCA preempted the 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 court of appeals held that the FDCA did not, however, preempt a state-law misbranding state-law 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.