In Durnford v. MusclePharm Corp., plaintiff Durnford asserted that the company’s “Arnold Schwarzenegger Series Iron Mass” supplements are falsely labeled because the protein content of the supplements is misstated. Durnford brought claims under California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”) Consumer Legal Remedies Act (“CLRA”) and for breach of express warranty. The district court dismissed these claims, finding them preempted by federal law. However, the Ninth Circuit affirmed in part and reversed in part the district court’s dismissal of Durnford’s claims effectively reviving them, albeit on a narrower basis. Durnford v. MusclePharm Corp., No. 16-15374, __ F.3d __ (9th Cir. 2018), 2018 U.S. App. LEXIS 28771.

Durnford’s complaint challenged the protein content of the supplements on two grounds. First, he alleged that the company inflated the protein content/amount by adding nitrogen compounds, a practice known as “nitrogen spiking” (the “Protein Content Claim”). He also alleged that the Iron Mass supplement contained less than half the promised content of “hydrolyzed beef protein and lactoferrin protein”(the “Protein Composition Claim”).

The Ninth Circuit affirmed the district court’s decision that the Food, Drug, and Cosmetic Act (“FDCA”) preempted Durnford’s Protein Content Claim. The FDCA requires that a food product’s label state the product’s total protein content. Related FDA regulations provide that the protein content may be calculated based on the product’s nitrogen content. Because nitrogen can be used as a proxy for determining protein content, “a claim that would permit a state to impose requirements for the measurement of protein for purposes of the federal mandated nutrition panel different from those permitted under the FDCA – is preempted.”

The court found that Durnford’s Protein Composition Claim was not preempted. Durnford alleged that the supplement’s label misled him into believing that the protein came entirely from genuine protein sources – hydrolyzed beef protein and lactoferrin – rather than nitrogen-spiking agents. The Court reasoned that federal law only addressed the amount of protein, not the asserted source of such protein.

Below, the district court had accepted the possibility that the label created a false or misleading impression in this respect but held that Durnford’s claims were preempted because he did not allege that he had any independent study contradicting the label or the application of the FDA regulations. The Ninth Circuit stated that the district court misapprehended Durnford’s Protein Composition Theory which did not rely on “the misleading nature of nitrogen spiking but on the label’s misleading suggestion that all of the protein . . . comes from specific protein sources.” According to the Ninth Circuit, “Durnford’s complaint adequately alleges facts necessary to support a consumer claim premised on his protein composition theory of misbranding.” Accordingly, the dismissal of his claims UCL, FAL, CLRA and breach of warranty claims based on his Protein Composition Claim was reversed.

While preemption is a powerful defense, the Ninth Circuit may interpret the doctrine narrowly to permit false labeling claims to withstand a pleading challenge.