United States District Court, W.D. Pennsylvania
DANIEL HUBERT, individually and on behalf of all others similarly situated, Plaintiff,
GENERAL NUTRITION CORPORATION, Defendant.
R. Hornak, United States District Judge.
before the Court is a motion by Defendant General Nutrition
Corporation ("GNC" or "Defendant") to
dismiss the First Amended Consolidated Class Action Complaint
(the "Amended Complaint") filed by Plaintiff Daniel
Hubert, individually and on behalf of similarly situated
individuals (ECF No. 39) pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) (the "Motion to
Dismiss") (ECF No. 48). In this prospective class action
litigation, Plaintiff Hubert alleges that he and other
consumers ("Plaintiffs") purchased supplements sold
by GNC with false and misleading labeling in violation of the
Magnuson-Moss Warranty Act, 15 U.S.C § 2301, et
seq., and the consumer fraud protection laws of numerous
states. Plaintiffs further assert that GNC
breached implied warranties, engaged in negligent
misrepresentation and unjustly enriched itself to the
detriment of consumers. Defendant has moved to dismiss the
Amended Complaint for lack of subject matter jurisdiction and
for failure to state a claim. For the reasons set forth
below, Defendant's Motion to Dismiss for lack of subject
matter jurisdiction will be granted, and the Amended
Complaint will be dismissed, without prejudice. Because the
Court finds that Plaintiffs lack standing to bring this case,
it need not address Defendant's other theories.
which is headquartered in Pittsburgh, Pennsylvania, is the
largest global specialty retailer of nutritional supplements.
Am. Compl. ¶¶ 25, 36. Plaintiffs allege that GNC
marketed and sold supplements manufactured by third party
vendors, which allegedly contained picamilon, BMPEA or acacia
rigidula, despite having known that these substances are not
dietary ingredients.Id. ¶¶ 3, 4, 38. The
supplements at issue here are primarily weight-loss and
sports nutrition supplements available as powders and
liquids. Id. ¶ 27.
aver that federal and state law place primary responsibility
for the safety of dietary supplements,  as well as truthful
labeling and advertising, on supplement manufacturers and
distributors such as GNC. Am. Compl. ¶ 28. According to
Plaintiffs, GNC sold products with false and misleading
labeling, and it failed to disclose material facts about the
dangers of ingesting picamilon, BMPEA and acacia rigidula.
Id. ¶ 5. Plaintiffs claim that they were
"hoodwinked" into purchasing supplements containing
these substances and would not have done so if GNC had
disclosed that they contained mislabeled ingredients which
purportedly pose serious health risks and are not marketable
as dietary supplements. Id. ¶¶ 6, 24.
picamilon, Plaintiffs allege that Jennifer Jakel
("Jakel"), who was GNC's Senior Project Manager
for Technical Research, reviewed documents translated from
Russian indicating that it is a "derivative of
gamma-amino-butyric acid and nicotinic acid." Am. Compl.
¶ 43. In 2007, Jakel made a notation stating "[n]o
NDI that I could find, " suggesting that aNDI submission
was not tendered to the Food and Drug Administration
("FDA") for picamilon. Id. ¶¶
31, 44. Again in April 2014, Jakel wrote "still no NDI
found." Id. ¶ 44.
on September 28, 2015, Dr. Cara Welch of the FDA issued a
declaration stating that "picamilon does not qualify as
a dietary ingredient" under the Food, Drug and Cosmetic
Act (the "FDC Act"). Am. Compl. ¶ 40.
Plaintiffs allege that GNC continued to sell dietary
supplements containing picamilon until September 21, 2015,
despite having known since 2007 that it was not a dietary
ingredient. Id. ¶¶ 44, 46.
additionally claim that GNC has been aware since the fall of
2013 that some dietary supplements labeled as containing
acacia rigidula actually contained BMPEA. Am. Compl.
¶¶ 52. Ms. Jakel supposedly was notified in
November 2013 of a study by FDA researchers which revealed
that many dietary supplements purportedly containing acacia
rigidula actually contained BMPEA, despite no testing to show
that BMPEA was safe for humans (hereinafter, "the FDA
Study"). Id. ¶¶ 49, 52. Subsequently,
Jakel allegedly emailed a USA Today article about
the FDA Study to approximately 100 recipients at GNC.
Id. ¶ 52.
allege that despite knowing of the FDA Study, GNC continued
to sell supplements containing acacia rigidula, without
testing them to determine whether they were adulterated with
BMPEA. Am. Compl. ¶¶ 55. However, in April 2015,
when the FDA formally announced that BMPEA did not meet the
definition of a dietary ingredient, GNC stopped selling
products containing BMPEA. Id.¶60.
acacia rigidula, Plaintiffs allege that the FDA warned six
manufacturers in March 2016, that it is a new dietary
ingredient which lacks evidence of safe use and therefore
could not be lawfully sold in the United States. Am. Compl.
¶ 67. Plaintiffs allege that GNC did not provide the FDA
with the required pre-market notification showing a history
of acacia rigidula's safe use, yet it was openly found on
labels of supplements offered for sale at GNC. Id.
¶¶ 70, 72.
aver that despite GNC's alleged knowledge regarding
picamilon, BMPEA and acacia rigidula, GNC sold products
containing those substances which were supplied by
third-party vendors. Am. Compl. ¶ 78. Plaintiffs claim
that GNC exercised significant control over the third-party
products it sold by reviewing and pre-approving labels,
warnings, packaging and advertising. Id.
¶¶ 73, 74. In addition, third-party vendors could
not alter approved formulas, labels or advertising without
GNC's permission. Id. ¶ 74. By controlling
the product labels of third party vendors, Plaintiffs allege
that GNC misrepresented that supplements containing
picamilon, BMPEA and acacia rigidula were safe for consumers
and legal to sell. Id. ¶ 79. According to
Plaintiffs, it is irrelevant that GNC received guarantees
from third-party vendors that products containing those
substances complied with legal requirements because GNC knew
or should have known that they were not safe and could not be
lawfully sold. Id. ¶¶ 75, 76.
Plaintiffs allege that picamilon, BMPEA and acacia rigidula
were listed on the labels of a variety of supplements
available for sale at GNC, including products that they
purchased. Am. Compl. ¶¶ 47, 65, 72. Plaintiffs
claim that through this labeling, GNC misrepresented that
those substances were safe and could be legally sold in the
United States. Id. As a result, Plaintiffs assert
that they purchased supplements they otherwise would not have
purchased, paid more for supplements than they otherwise
would have paid and have been subjected to unreasonable
safety risks. Id. ¶¶ 6, 24, 81.
STANDARD OF REVIEW
Fed.R.Civ.P. 12(b)(1), "a court must grant a motion to
dismiss if it lacks subject-matter jurisdiction to hear a
claim." In re Schering Plough Corp. Intron/Temodar
Consumer Class Action, 678 F.3d 235, 243 (3dCir. 2012).
"A motion to dismiss for want of standing is... properly
brought pursuant to Rule 12(b)(1), because standing is a
jurisdictional matter." Ballentine v. United
States. 486 F.3d 806, 810 (3d Cir. 2007).
evaluating a challenge to subject matter jurisdiction under
Rule 12(b)(1), a court first must determine whether the
movant presents a facial or a factual attack. See Davis
v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). The
distinction is important because it determines how the
complaint must be reviewed. See Mortensen v. First Fed.
Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.
1977). A facial attack "challenges subject matter
jurisdiction without disputing the facts alleged in the
complaint, and it requires the court to 'consider the
allegations of the complaint as true."'
Davis. 824 F.3d at 346 (citation omitted). A factual
challenge "attacks the factual allegations underlying
the complaint's assertion of jurisdiction, either through
the filing of an answer or 'otherwise present[ing]
competing facts.'" Id. (citation omitted).
Here, GNC makes a facial challenge because it has not
disputed the validity of Plaintiffs' factual claims in
its Motion to Dismiss. In essence, GNC contends that the
allegations of the Amended Complaint, even accepted as true,
are insufficient to establish Plaintiffs' Article III
considering a facial challenge to standing, courts are to
apply the same standard as on review of a Rule 12(b)(6)
motion for failure to state a claim. See Petruska v.
Gannon Univ., 462 F.3d 294, 299 n. 1 (3d Cir. 2006)
(explaining "that the standard is the same when
considering a facial attack under Rule 12(b)(1) or a motion
to dismiss for failure to state a claim under Rule
12(b)(6)") (citation omitted)). Consequently, the court
is to "accept all factual allegations as true, construe
the complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of the
complaint, the plaintiff [has standing]." Phillips
v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)
(citation omitted). Nonetheless, "[t]hreadbare recitals
of the elements of [standing], supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Thus, "[t]o survive a motion
to dismiss [for lack of standing], a complaint must contain
sufficient factual matter" that would establish standing
if accepted as true. Id. (citing Bell Atl. Corp.
v. Twomblv, 550 U.S. 544, 570 (2007)).
argues that the Amended Complaint must be dismissed for lack
of standing because Plaintiffs have not sufficiently pled the
essential element of injury-in-fact. According to GNC,
Plaintiffs simply allege that they purchased the supplements,
but do not allege that they actually consumed them or
suffered any adverse health consequences from them. GNC
points out that any apprehension Plaintiffs may have about
possible future injury is insufficient to establish
respond that they have suffered an economic injury, which
suffices to establish injury-in-fact for standing purposes.
Plaintiffs contend that they incurred economic injury because
they purchased products with false, misleading and ...