Lewis Brisbois Gets Dismissal of False Ad Suit Affirmed

Los Angeles Partners Dan DeCarlo and Josephine Brosas and San Diego Appellate Partner Jeff Miller recently convinced a California appellate court to affirm the dismissal of an unfair competition and false advertising suit filed against nutritional supplement company Southern SARMs Inc.

Nutrition Distribution LLC, a manufacturer and marketer of nutritional supplements for bodybuilders, sued Southern SARMs alleging that its competitor misbranded and unlawfully marketed its Ostarine product, which the plaintiff said was an illegal “synthetic [drug] with similar effects to illegal anabolic steroids." While Southern SARMs’ product was labeled as “not intended to treat, cure or diagnose any condition or disease and not for human consumption," the plaintiff claimed that Southern SARMs still marketed the product as a miracle dietary supplement for bodybuilders on its website. The plaintiff sought injunctive relief preventing Southern SARMs from producing and selling Ostarine as well as the disgorgement of Southern SARMs’ profits.

Southern SARMs demurred to the first amended complaint, arguing that the plaintiff’s claims invaded the primary jurisdiction of the Food and Drug Administration, which is the agency that governs the sale of illegal drugs and supplements. Southern SARMs also argued that the plaintiff was seeking standard tort damages, which are not recoverable in unfair competition or false advertising actions, and that the plaintiff sought overly broad injunctive relief preventing the sale of Ostarine rather than prohibiting the allegedly false or misleading advertising.

The trial court denied the plaintiff’s motion for a preliminary injunction and sustained Southern SARMs’ demurrer without leave to amend.

On appeal, in a 3-0 opinion, the court found that the trial court properly sustained Southern SARMs’ demurrer to the first amended complaint, ruling that the plaintiff failed to state a cause of action for unfair competition or false advertising.

Read the full opinion here.

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