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Durnford v. MusclePharm Corp.

United States Court of Appeals for the Ninth Circuit

November 15, 2017, Argued and Submitted, San Francisco, California; October 12, 2018, Filed

No. 16-15374

Opinion

 [*597]  BERZON, Circuit Judge:

Tucker Durnford brought California consumer claims against MusclePharm Corporation, a manufacturer of nutritional supplements, for making false or misleading statements about the protein in one of its products. The district court dismissed Durnford's action as preempted by the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301-399i, reasoning that any declarations of protein content anywhere on a product [**3]  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. We disagree. As here relevant, the FDCA and its implementing regulations concern only the calculation and disclosure of protein amounts. They say nothing about the source or composition of protein, factors which underlie one of Durnford's several theories of consumer deception. Durnford's claims are therefore not preempted to the extent they arise under that theory.

MusclePharm is a Nevada corporation that produces a line of nutritional supplements,  [*598]  including the "Arnold Schwarzenegger Series Iron Mass" supplement ("the Supplement") here at issue. Durnford is a California citizen who purchased the Supplement from a sports nutrition retailer in 2014.

The Supplement is marketed as a muscle-building or weight-gain product, with a focus on its "revolutionary 5-stage mass delivery system." According to the Supplement's label,3 this "system" consists of "advanced protein technology, elite complex carbs, healthy fats, cutting-edge performance ingredients and a balanced digestive blend."

The label describes [**4]  the "stages" of the Supplement's "system" in some detail. In particular, the second stage is described as "Muscle plasma protein technology: 40g of a potent blend of hydrolyzed beef protein and lactoferrin protein." The fourth stage is described as "Performance growth & muscle volumizer: Creatine and BCAA nitrates help promote muscular strength, size and endurance."

The nutrition panel at the back of the label also reflects the "five-stage system." For example, in listing the Supplement's ingredients, the front of the label divides ingredients according to the "five stages." The nutrition panel then repeats the five stages in the same order they appear on the front of the label, and repeats the same jargon in describing them.

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907 F.3d 595 *; 2018 U.S. App. LEXIS 28771 **

TUCKER DURNFORD, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. MUSCLEPHARM CORP., Defendant-Appellee.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 3:15-cv-00413-HSG. Haywood S. Gilliam, Jr., District Judge, Presiding.

Durnford v. MusclePharm Corp., 2015 U.S. Dist. LEXIS 170351 (N.D. Cal., Dec. 18, 2015)

CORE TERMS

protein, label, nutrition, nitrogen, composition, spiking, misbranding, preemption, preempted, misleading, consumer, calculating, ingredients, food, lactoferrin, grams, beef, hydrolyzed, muscle, misled, acids, amino, nitrogen-spiking, tweet

Business & Corporate Compliance, Governments, Agriculture & Food, Federal Food, Drug & Cosmetic Act, Constitutional Law, Supremacy Clause, Federal Preemption, Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Administrative Law, Separation of Powers, Legislative Controls, Explicit Delegation of Authority, Pleadings, Complaints, Requirements for Complaint, Responses, Affirmative Defenses