Class action for false and misleading product advertising dismissed pursuant to FRCP 8, 9(b), and 12(b)(6).

In September 2013, the plaintiff Cortina filed a class action suit against Wal-Mart, alleging eleven causes of action based on false and misleading statements regarding a health supplement in Cortina v. Wal-Mart, Inc (2014 WL 2906285).  The plaintiff alleged violations of the Magnuson-Moss Warranty Act, Arkansas Deceptive Trade Practices law, California Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and Commercial Code §2315, and UCC warranty violations.  Wal-Mart moved to dismiss the action under Fed. R. Civ. P. 8, 9(b), and 12(b)(6). Cortina had purchased the co-enzyme CoQ-10 from Wal-Mart.  She tested the supplement under voluntary pharmaceutical standards for dissolution and discovered the levels were substandard.  She alleged that because of this, statements such as “provides clinical strength,” “high absorption,” and “3 times better absorption” included in the advertising were false and misleading.  She also claimed that statements about CoQ-10 supporting general health were misleading because they provided less of a benefit than consumers would reasonably expect.

The District Court applied California law and dismissed the Arkansas claim.  Cortina’s claims for fraud and false advertising were also dismissed.  Although she demonstrated substandard dissolution rates, she did not measure the absorption rate of the supplement or compare it to others.  Her allegations of fraud related to absorption, not dissolution, and she failed to offer any evidence relating to absorption.  Her pleadings were found insufficient under both Fed. R. Civ. P. 8 and 9(b).  The Plaintiff also lost her warranty claims.  The plaintiff tested CoQ-10 under voluntary standards, but no mandatory standards had been established.  Since no minimum benchmark existed, there can be no warranty and no breach.  The Court dismissed the plaintiff’s remaining claims.

The Court granted the motion to dismiss with leave to amend.