Case 3:19-cv-02414-LB Document 1 Filed 05/03/19 Page 1 of 32

Case 3:19-cv-02414-LB Document 1 Filed 05/03/19 Page 1 of 32

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KAPLAN FOX & KILSHEIMER LLP

Lawrence King (SBN 206423)

lking@

Mario M. Choi (SBN 243409)

mchoi@

350 Sansome Street, Suite 400

San Francisco, CA 94104

Telephone: (415) 772-4700

Facsimile: (415) 772-4707

KAPLAN FOX & KILSHEIMER LLP

Maia C. Kats (to be admitted pro hac vice)

mkats@

6109 32nd Place, NW

Washington, DC 20015

Telephone: (202) 669-0658

REESE LLP

Michael R. Reese (SBN 206773)

mreese@

George V. Granade (SBN 316050)

ggranade@

100 West 93rd Street, 16th Floor

New York, New York 10025

Telephone: (212) 643-0500

Facsimile: (212) 253-4272

Counsel for Plaintiffs Richa Arora, Randy Clinton,

and Walter Johnston and the Proposed Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHA ARORA, RANDY CLINTON, and

WALTER JOHNSTON, individually and on

behalf of all others similarly situated,

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Plaintiffs,

Case No. 3:19-cv-02414

CLASS ACTION COMPLAINT

Demand for Jury Trial

v.

GNC HOLDINGS, INC.,

Defendant.

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CLASS ACTION COMPLAINT

Case No. 3:19-cv-02414

Case 3:19-cv-02414-LB Document 1 Filed 05/03/19 Page 2 of 32

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Plaintiffs Richa Arora, Randy Clinton, and Walter Johnston (collectively, ¡°Plaintiffs¡±),

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individually and on behalf of all others similarly situated, bring this class action complaint against

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GNC Holdings, Inc. (¡°Defendant¡± or ¡°GNC¡±), and on the basis of personal knowledge,

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information and belief, and investigation of counsel, allege as follows:

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NATURE OF THE ACTION

1.

This action seeks to recover for injuries suffered by Plaintiffs and all others

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similarly situated (the ¡°Class,¡± as defined below) as a direct result of GNC¡¯s unlawful, deceptive,

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and misleading labeling, marketing, and sale of GNC proprietary brand dietary supplements

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(¡°GNC proprietary brand supplements¡± or the ¡°Supplements¡±), including, but not limited to, GNC

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Men¡¯s Prostate Formula Dietary Supplement (¡°Prostate Health¡±), GNC Diabetic Support Dietary

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Supplement (¡°Diabetic Support¡±), GNC Preventive Nutrition Healthy Blood Pressure Formula

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Supplement, GNC Women¡¯s Ultra Mega Active Supplement, and GNC Mega Men Healthy

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Testosterone (¡°Mega Men Performance¡±).

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2.

Plaintiffs assert three types of claims. First, they assert ¡°unlawful¡± claims because

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GNC marketed, labeled, and sold misbranded Supplements in violation of the Federal Food, Drug,

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and Cosmetic Act of 1938, 21 U.S.C. ¡ì 301 et seq. (the ¡°FFDCA¡± or the ¡°Act¡±), as amended by

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the Dietary Supplement Health and Education Act of 1994, Pub. L. No. 103¨C417, 108 Stat. 4325

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(¡°DSHEA¡±), as well as the regulations implementing the FFDCA and DSHEA. These

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requirements are fully incorporated into California¡¯s Sherman Food, Drug, and Cosmetic Law,

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CAL. HEALTH & SAFETY CODE ¡ì 109875 et seq. (¡°Sherman Law¡±), and actionable pursuant to the

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unlawful prong of California¡¯s Unfair Competition Law, CAL. BUS. & PROF. CODE ¡ì 17200 et seq.

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(¡°UCL¡±).

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3.

Second, Plaintiffs assert ¡°misleading and deceptive¡± marketing claims because

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GNC labeled, marketed, and sold the Supplements in a manner that is unfair, deceptive, and untrue

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in violation of California¡¯s UCL and New York¡¯s Consumer Protection from Deceptive Acts and

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Practices Law, N.Y. GEN. BUS. LAW ¡ì 349 et seq.

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4.

Third, Plaintiffs assert common law claims for unjust enrichment.

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-1CLASS ACTION COMPLAINT

Case No. 3:19-cv-02414

Case 3:19-cv-02414-LB Document 1 Filed 05/03/19 Page 3 of 32

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5.

With respect to Plaintiffs¡¯ ¡°unlawful¡± claims, GNC is prohibited from labeling,

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marketing, or selling dietary supplements bearing claims that ¡°describe[] the role of a nutrient or

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dietary ingredient intended to affect the structure or function in humans, [or that] characterize[] the

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documented mechanism by which a nutrient or dietary ingredient acts to maintain such structure or

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function¡± (known as ¡°structure/function claims¡±), unless the label carries a prominent disclaimer

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on each panel bearing such claims. See 21 U.S.C. ¡ì¡ì 321(g)(1), 331(d), 343(r)(1)(B), 343(r)(6),

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355(a); 21 C.F.R. ¡ì 101.93(d) (¡°On product labels and in labeling (e.g., pamphlets, catalogs), the

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disclaimer shall appear on each panel or page where there [is a structure/function claim].¡±).

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6.

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These statements have not been evaluated by the Food and Drug

Administration. This product is not intended to diagnose, treat,

cure, or prevent any disease.

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The disclaimer must be prominent and bolded, and it must read:

21 U.S.C. ¡ì 343(r)(6)(C); see also 21 C.F.R. ¡ì 101.93(b)-(e).

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Because GNC Supplements do not bear the required disclaimers on all panels with

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structure/function claims, and/or the disclaimer lacks the prominence required, the Supplements

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are misbranded and unlawful. 21 U.S.C. ¡ì 343(r)(1)(B), (r)(6); 21 C.F.R. ¡ì 101.93(d).

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GNC Supplements also qualify as ¡°drugs¡± under the FFDCA since GNC markets

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them with structure/function claims but does not include the disclaimers. See 21 U.S.C.

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¡ì¡ì321(g)(1), 343(r)(6). In order to avoid being regulated as drugs under the FFDCA, dietary

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supplements bearing structure/function claims must comply with the disclaimer requirements. Id.

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9.

Drugs require pre-market approval from the federal Food & Drug Administration

(¡°FDA¡±). 21 U.S.C. ¡ì¡ì 331(d), 355(a).

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Upon information and belief, GNC lacks pre-market approval for its Supplements,

rendering them not just misbranded but unapproved drugs.

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Misbranded dietary supplements and/or unapproved drugs are unlawful and cannot

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be sold legally. 21 U.S.C. ¡ì¡ì 331, 333. Under Section 110760 of the Sherman Law, they have no

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economic value and are worthless.

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12.

With respect to Plaintiffs¡¯ ¡°deceptive and misleading¡± claims, GNC deceptively

labels, markets, and sells the Supplements as having been subjected to the FDA¡¯s pre-market

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Case No. 3:19-cv-02414

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approval process; and/or intended to prevent, cure, or treat a disease or health-related condition

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linked to disease.

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13.

GNC compounds its deception by coupling its omission of the disclaimer with

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misleading phrases like ¡°clinically studied,¡± ¡°scientifically designed,¡± ¡°physician formulated,¡± or

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¡°physician endorsed,¡± and with medical symbols, and/or by referencing diseases and/or conditions

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equated with disease in its marketing of the Supplements.

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14.

Plaintiffs and the members of the Class reviewed and reasonably relied on GNC¡¯s

Supplement labels and packaging when purchasing them and were misled by GNC¡¯s marketing.

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Had Plaintiffs known that the Supplements were misbranded, unlawful, lacked

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government review and approval, and/or were not intended to treat, cure, or prevent any disease

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(that is, were not intended for therapeutic purposes), Plaintiffs would not have purchased them.

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16.

Owing to their reliance on GNC¡¯s deceptive labeling, marketing, and sales of the

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Supplements, Plaintiffs and the members of the Class purchased GNC Supplements believing

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them to have characteristics and qualities that they do not have. Plaintiffs and the members of the

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Class have been injured because they would not have purchased the Supplements or paid as much

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for them had they known the truth.

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PARTIES

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A.

Plaintiffs

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17.

Plaintiff Richa Arora is a resident of San Francisco, California.

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18.

During the relevant class period, Ms. Arora purchased GNC Prostate Health

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Supplement for her father, GNC Women¡¯s Ultra Mega Active Supplement for herself, and other

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Supplements, from a GNC location at the Northpoint Shopping Center, 350 Bay Street, San

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Francisco, California 94133, in addition to other purchases.

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19.

Ms. Arora believed that the Supplements were lawful, correctly branded, subject to

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a governmental review and approval process, and had therapeutic value, including that they were

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intended to prevent or treat disease, including prostate disease.

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20.

Ms. Arora relied on GNC¡¯s marketing of the Supplements, both implied and

express, when making her purchases.

-3CLASS ACTION COMPLAINT

Case No. 3:19-cv-02414

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21.

Ms. Arora paid more for, and purchased more of, GNC Supplements than she

would have had she known the truth about them.

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Ms. Arora was injured in fact and lost money as a result of Defendant¡¯s improper

and unlawful conduct.

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If Ms. Arora knew that GNC¡¯s marketing and sale of the Supplements was lawful,

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truthful, and non-misleading, she would purchase the Supplements in the future. At present,

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however, Ms. Arora cannot purchase the Supplements because she cannot be confident that they

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are lawful and that their labeling is truthful and non-misleading.

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24.

Plaintiff Randy Clinton is a resident of Tracy, California.

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During the relevant class period, Mr. Clinton purchased GNC Diabetic Support

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Supplement, and other Supplements, from a GNC location at the West Valley Mall, 3200 North

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Naglee Road, Tracy, California 95304.

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Mr. Clinton believed that the Supplements were lawful, correctly branded, subject

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to a governmental review and approval process, and had therapeutic value, including that they

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were intended to prevent or treat disease, including diabetes.

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27.

Mr. Clinton relied on GNC¡¯s marketing of the Supplements, both implied and

express, when making his purchases.

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Mr. Clinton paid more for, and purchased more of, GNC Supplements than he

would have had he known the truth about them.

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Mr. Clinton was injured in fact and lost money as a result of Defendant¡¯s improper

and unlawful conduct.

30.

If Mr. Clinton knew that GNC¡¯s marketing and sale of Supplements was lawful,

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truthful, and non-misleading, he would purchase the Supplements in the future. At present,

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however, Mr. Clinton cannot purchase the Supplements because he cannot be confident that they

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are lawful and that their labeling is truthful and non-misleading.

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31.

Plaintiff Walter Johnston is a resident of Jamestown, New York.

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-4CLASS ACTION COMPLAINT

Case No. 3:19-cv-02414

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