Tucker Durnford v. Musclepharm Corp.
907 F.3d 595
| 9th Cir. | 2018Background
- Plaintiff Tucker Durnford bought MusclePharm’s "Iron Mass" dietary supplement labeled as a "five-stage" mass delivery system and represented on the nutrition panel as containing 40g protein per 95g serving.
- The label lists hydrolyzed beef protein and lactoferrin as the product’s protein sources, while creatine and free-form amino acids appear separately under a different stage.
- Durnford alleges "nitrogen (protein) spiking": MusclePharm inflated protein figures by including non-protein, nitrogen-rich substances (creatine, free amino acids), and an independent test allegedly found ~19.4g protein per serving.
- He asserted California UCL, FAL, CLRA, and express-warranty claims for false/misleading labeling and breach of express warranty.
- District court dismissed: (1) claims challenging the 40g protein figure (protein-content theory) as preempted by the FDCA/FDA regulations allowing nitrogen-based protein calculations; (2) claims about protein composition as preempted because plaintiff didn’t allege FDA-compliant testing; and (3) claims based on a MusclePharm tweet for failure to plead reliance.
- Ninth Circuit reversed in part: upheld preemption for content-based claims but held composition-based claims (label implying protein derived entirely from named genuine sources) are not preempted; tweet-based claim still inadequately pleaded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether state-law challenge to the nutrition-panel protein amount (40g) is preempted by FDCA/FDA rules | Durnford: 40g is misleading because it was inflated by nitrogen-spiking non-protein substances | MusclePharm: FDA regulations permit calculating protein via nitrogen content; state law cannot impose different measurement requirements | Held preempted: FDCA/FDA regulations governing protein measurement displace state-law claims attacking the nutrition-panel protein amount |
| Whether state-law claim based on label implication that protein comes entirely from named genuine sources (hydrolyzed beef protein, lactoferrin) is preempted | Durnford: Label falsely implies protein composition is solely from stated genuine proteins (no nitrogen spiking) | MusclePharm: Such claims are effectively challenges to protein measurement and thus preempted unless plaintiff used FDA testing protocol | Held not preempted: FDCA/regulations govern amount calculation, not composition/source claims; composition-based deception claims may proceed |
| Whether allegedly misleading corrective statement on Twitter supports claims (Nitrogen Spiking Claim) | Durnford: Tweet denying nitrogen-spiking misled consumers | MusclePharm: Tweet not connected to Durnford’s purchase; reliance not adequately alleged | Held: Dismissed for failure to plead reliance/connection to purchase; inadequately pleaded as independent basis for relief |
Key Cases Cited
- Wyeth v. Levine, 555 U.S. 555 (2009) (presumption against preemption in areas of traditional state regulation; agency regulations do not automatically preempt state law absent clear congressional intent)
- Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 (9th Cir. 2015) (state-law label claims not preempted where no federal requirement governs the challenged term)
- United States v. Mead Corp., 533 U.S. 218 (2001) (agency regulations interpreting statutes are binding when Congress has delegated authority and the regulation is not defective)