The suit was brought on behalf of a nationwide class of purchasers of Ensure shakes and other products containing Revigor, a source of amino acid metabolite HMB. Abbott allegedly advertises these products as helping to “rebuild muscle and strength naturally lost over time.” Interestingly, the plaintiff did not merely allege that the product failed to rebuild muscle, as promised. Rather, the plaintiff argued that Abbott’s advertising is misleading because it does not disclose that the Ensure products cannot work unless used in combination with exercise. The complaint explicitly cited several scientific studies in support of plaintiff’s argument, which the court treated as part of the pleadings.
Judge Stephen V. Wilson found plaintiff’s allegations deficient under Rule 8’s plausibility standard:
“Plaintiff’s naked assertion that the representation is misleading is nothing more than a legal conclusion… To allege a likelihood of deception, Plaintiff must set forth well-pleaded facts indicating beyond speculation that the Products only deliver the claimed health benefits to adults who exercise.” Id. at *6.
The court reached this conclusion after reviewing each of the cited scientific studies in detail. Ultimately, Judge Wilson disagreed with the plaintiff’s interpretation of the scientific evidence, finding instead that the studies showed that subjects who did not exercise still experienced increases in muscle mass from the Ensure ingredients:
“None of the articles are apposite as they fail to test the precise combination of ingredients in the Products. Even ignoring this problem, however, the [named] studies each produced data that persons taking a blend of HMB and amino acids rebuilt muscle and strength without exercise.” Id. at *16.
Judge Wilson dismissed the complaint with leave to amend but warned that amendment would likely be futile “given [Plaintiff’s] repeated failure to identify studies or other facts to plausibly support his claims.”
The decision suggests a trend that ought to give hope to defendants in these cases. Where it once appeared sufficient merely to allege that a product didn’t perform as promised, courts are increasingly requiring plaintiffs to come to the table with real supporting evidence, rather than conclusory allegations, of false advertising.